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I 


t 


International  Law 

HAVING  PARTICULAR 
REFERENCE  TO  THE 
LAWS  of  WAR  ON  LAND 


A  COURSE  OF  TWELVE  LECTURES 
DELIVERED  TO  THE  STAFF  CLASS 
OF  THE  ARMY  SERVICE  SCHOOLS 

BY 

LIEUTENANT  COLONEL  J.  B.  PORTER, 

JUDGE  ADVOCATE  U.  8.  ARMY 
SENIOR  INSTRUCTOR  DEPARTMENT  OF  LAW 


These  Lectures  are  Based  on  Notes  of 
Lectures  by  M.  Louis   Renault  of 
the  Institut  de  France,  Profes- 
sor of  International  Law  at 
the  Ecole  Superiere 
de  Guerre 


Second  (Revised)  Edition  with  Appendix 


FORT  LEAVENWORTH,  KANSAS 
PRESS  OF  THE  ARMY  SERVICE  SCHOOLS 


1914 


*5. 


^ 


INDEX 


A  DMINISTRATION  OP  JUSTICE  IN  OCCUPIED  TERRITORY 

Economic  measures  which  occupant  may  take, 192 

How  administered, 189 

How  to  be  rendered, 190 

Jurisdiction  of  occupant, ._  191 

Aeronauts 

Question  of  being  spies, 107 

Aid  Societies 

Assisting  belligerent, 139 

Conditions  for  cooperation  with  sanitary  service,..  135 

Domestic  question  of  organization  of, 134 

Personnel  of,  assimilated  to  official  personnel, 133 

Position  of, 137 

Respect  for  materiel  of, 145 

Alabama  Case 

Explanation  of, 34 

Alliance 

Treaties  of, 57 

Ambassadors 

Precedence  of, .  12,17 

American  National  Red  Cross 

Officer  of  medical  corps  to  take  charge  of, 138 

Origin  of, 124 

Organization  of, 134 

President  authorized  to  accept  services  of, 136 

Arbitration 

Definition  of, 33 

Organization  of, _ _  35 

Permanent  court  of , 36 

iii 


&&WJ4AV 


Armistice 

Definition  of, 169 

Effect*  of, 173 

Length  of, 171 

Matter  of  revictuaiing  daring, 174 

Scope  of, 172 

To  be  published  immediately  on  agreement  for,...  171 
Violation  of, 176 

Arrangements  Between  Nations 

Defined, 4 

Assassination 

Defined, 99 

Assault 

Defined, 98 

A8SIMILATION 

Of  personnel  of  aid  societies  to  official  personnel,. .  133 

OALLOONB 

Projectiles  thrown  from, 88 

Barbarous  Methods 

Definition  of, _ 86 

Belligerents 

Belligerents  and  enemies  in  general, 74 

Belligerent  nationals,  interests  of, 57 

Convention  between  and  municipalities, 182 

Conventions  which  may  arise  between, 156 

Methods  of  communication  between, 153 

Relation  of,  with  population  of  enemy's  territory,.    176 
Who  are  belligerents, 75 

Blockades 

Must  be  effective, 5 

Peaceful  blockades, . .  42 

Bombardment 

Question  of  legality, 95 

booty 

Distinction  between  booty  and  pillage, 205 

Brussels 

Conference  of  (1874), 6,  71 

iv 


Buildings 

Subject  to  the  laws  of  war, 145 

Bullets 

Explosive  and  expansive, 86 

/~ialls  and  Countersigns  of  Enemy 

^         Use  of, : 103 

Capitulations 

Definition  of, 160 

In  the  open  field, 165 

Object  of, -165 

Of  a  stronghold, 162 

Ratification  of, .  166 

Violations  of, _ 168 

Charge  D' Affairs 

Definition  of, 17 

Chemulpo 

Discussion  of  affair  of, 64 

China  Expedition  of  1900 

Discussion  of, 43 

Civil  War 

Definition  of, 48 

City 

Method  of  reducing  a, 93 

What  city  may  be  attacked, 91 

Classification 

Of  states, 12 

Of  wars, 46 

Codification 

Of  laws  of  war, 4 

Colonial  Contingents 

Employment  of, 76 

Combatants,  Free 

Definition  of, 76 

Commission  of  Inquiry,  International 

Purpose  of, 39 

v 


Confederation 

Germanic, 19 

North  German,  ...  20 

Of  states, 19 

Status  of  in  war, 57 

Swiss, 24 

Conference  of  Brussels 

Attempt  by,  to  codify  laws  of  war, 6 

To  determine  basis  for  laws  of  war, 71 

Conference  of  London,  Naval,  1908 

Purpose  of, 8 

Conquest 

Occupation  and  conquest 185 

Consul  General 

Status  of, 18 

Consuls 

In  non-Christian  countries, 11 

Status  of, 17 

Contingents 

Colonial,  Employment  of, 76 

Foreign,  ._ 75 

Contributions 

Definition  of, 218 

Contributions  of  War 

Collection  of, 232 

Definition  of, 229 

Origin  of, 229 

When  legitimate, 229 

Conventions 

Armistice  is  a  semi-political  convention, 169 

Between  belligerent  and  municipality, _ .  182 

Convention  is  a  treaty, 9 

The  Hague  Convention,  1899, 72 

Geneva  Convention,  1864, 70,  125 

Geneva  Convention,  1868, 6 

Geneva  Convention,  1906, 70,  196 

London  Convention,  1908, 39 

Which  may  arise  between  belligerents, 156 

Convoys 

Personnel  and  materiel  of, 147 

vi 


Countersign  of  Enemy 

Use  of, 103 

Custom 

Definition  of, 3 

T^VECLA  RATION 

■^        Definition  of, 4 

Of  London,  1909, 39 

Of  Paris,  1856, 4,  70 

Of  St.  Petersburg,  1868, 6,  70 

Of  war, 50 

Defensive  War 

Definition  of, 46 

Delay  of  Enemy's  Merchant  Ships 

A  matter  of  grace, 65 

Deleterious  Gases 

Projectiles  containing, 89 

Destruction 

Useless  destruction, 91 

Differences,  International 

Causes  of, 24 

Different  Forms  of  State 

Explained, 16 

Diplomatic  Agents 

Precedence  of, 12 

Diplomatic  Relations 

Rupture  of, 56 

Direct  Negotiations 

Definition  of , 26 

T^FFECTS  OF  WAR 

On  property, 195 

On  treaties  previously  concluded, 59 

What  they  are, 55 

Egypt 

Peculiar  situation  of, 15 

Embargo 

Definition  of , 42 

vii 


Empire,  German 

Constitution  of, -  -  -    21 

Enbmies 

And  belligerents  in  general,... 74 

Uniforms  and  flags,  use  of, 102 

Enforcement  of  Laws  of  War 

Rules  for, 242 

Escape 

Of  prisoners  of  war, 115 

Espionage 

Definition  of, 105 

Characteristics  of, 1  106 

Judicial  aspect  of, 109 

European  Law  of  Nations 

Definition  of,.. 10 

Expansive  and  Explosive  Bullets 

Use  of, 86 

Expedition  to  China  (1900) 

Discussion  of, . 43 

Explosive  and  Expansive  Bullets 

Use  of, -.- 86 

1^al8E  News 

*  The  spreading  of, 103 

Federation 

Definition  of.. 19 

First  Peace  Conference 

The  Hague,  1899, 6 

Flags  of  Enemy 

Use  of, _... .102 

Flags  of  Truce 

Procedure  of,. 153 

Foreign  Contingents 

Employment  of, 75 

Free  Combatants 

Definition  of, _ _ 76 

viii 


General  Orders  100 
Quoted, 5,  9,  67,  189,  225 

Geneva  Conference 

Private  1863, 124 

Geneva  Convention 

Of  1864,.. 70,  125 

Of  1868,  __ 6 

Of  1906, 70,196 

German  Empire 

Constitution  of, 21 

Germanic  Confederation 

Origination  and  organization, 19 

Good  Offices 

Definition  of, 29 

ttague  Convention 

I*        First  Peace  Conference  of  1899, 6,  72 

Rules  annexed  to, 74 

Rules  governing  occupation, 186 

Second  Peace  Conference  of  1907, 7 

Heraldic  Emblems 

Of  Red  Cross, __ 148 

Precaution  against  abuse  of, 150 

Hospitals 

Respect  for  materiel  of  civil  hospitals, 145 

Question  of  flags  for, 151 

Hospital  Personnel 

Protection  of, 152 

Hostilities 

Notice  of, 53 

Subdivided  under  two  heads, 74 

What  they  may  consist  of, 86 

Hull  Incident 

Reference  to, 40 

TNDEMNITY 

*  Right  of ,  by  sufferers  of  loss, 240 

ix 


Insurrection 

In  occupied  territory, 186 

International  Commission  op  Inquiry 

Purpose  of, 39 

International  Committee  of  Geneva 

Roleof,.. i 136 

International  Conventions 

Definition  of, 157 

International  Differences 

Causes  of, _  24 

Consequences  of, 25 

Settlement  of, 25 

International  Disputes 

Violent  results  of,__ 41 

International  Law 

Definition  of, 1 

Institute  of  (Oxford  1880), 6 

Origin  of  rules  of, 3 

International  Prize  Court 

Purpose,  etc.,  of, 38 

Insurrection 

Procedure  of  inciting, 100 

Interests  of  Belligerent  Nationals 

Discussion  of,.... _ 57 

Investment 

Means  of  reducing  a  city, 93 

tub  Gentium 

•*  Definitionof, 1 

t  aw  International 

*-*        Definitionof, 1 

Law,  Municipal 

Definitionof, 3 

1  Law,  Natural 

Definitionof, 1 

x 


Law,  Positive 

Definition  of, 1 

Law,  Private 

Definition  of, 2 

Law,  Public 

Definitionof, 1 

Law  of  Nations 

European, _ 10 

Laws  op  War 

Buildings  and  materials  subject  to,  _ 145 

Codification  of, 4 

Definitionof, 66 

On  land, 3 

Rules  for  enforcement  of , 242 

Legislation 

Applicable  to  occupied  territory, .  _ _  _ 188 

Levees  en  Masse 

Definitionof, 83 

Lieber,  Francis 

Prepares  General  Orders  100, 67 

London  Convention 

Of  1908, 39 

London  Declaration 

Of  1909 39 

London  Naval  Conference 

Of  1908, 8 

\yt aritime  War 

Volunteers  in, 80 

Martial  Law 

Definitionof, __  189 

Materiel 

Of  fixed  sanitary  establishments, 144 

Of  sanitary  formations, 144 

Position  of,  of  convoys  of  evacuation, 147 

Receipt  for,  of  civil  hospitals  and  of  aid  societies- _  145 

zi 


Mediation 

Deflnitionof, 29 

Merchant  Ships 

Delay  for  enemy, 65 

Messengers 

May  they  be  treated  as  spies? 107 

Methods,  Barbarous 

Bounds  which  must  not  be  passed, 86 

Methods  of  Reducing  a  City 

Deflnitionof, 93 

Military  Conventions 

Deflnitionof, 158 

Suspension  of  arms, _ 169 

Military  Occupation 

Administration  of  justice  in  occupied  territory,  ...  189 

As  a  war  measure, 180 

By  way  of  guaranty, . . . 180 

Definition  of, 177 

Economic  and  administrative  measures  an  oc- 

pant  may  take, 192 

Insurrection  in  occupied  territory, 186 

Invader  occupies  but  does  not  acquire  real 

property, 196 

Legal  rights  of  occupying  power, 178 

Legislation  applicable  to  occupied  territory, 188 

Local  jurisdiction, 189 

Notification  of, 186 

Occupation  and  conquest, 185 

Policy  of  occupant  in  occupied  tertitory, 197 

Personal  property  rights  under, 198 

Relations  between  occupant  and  occupied  country,  187 

Right  of  occupant  to  collect  taxes, 192 

Rules  of  The  Hague  governing, 186 

When  is  there  military  occupation, 185 

Ministers 

Deflnitionof, _ 12 

Mixed  Commissions 

Constitution  of, . 28 

Monroe  Doctrine 

Discussed, _    13 

xii 


MOYNIBR,  GUSTAVE 

President  of  1st  Red  Cross  Society, 124,  136 

Municipalities 

Conventions  between  belligerent  and, 182 

Municipal  Laws 

Definition  of , 3 

TW  TATION 

™'      Definition  of, 2 

Means  State, 3 

National  Flags 

Red  Cross  to  be  accompanied  by, 151 

Nationals 

Established  in  enemy's  country, 61 

Natural  Law 

Definition  of, 1 

Naval  Conference 

Of  London  in  1908, 8 

Negotiations,  Direct 

Definition  of, 26 

Neutrality 

Status  of, 56 

Neutralized  States 

Definition  of , 49 

Non-Christian  Countries 

Distinction  between  Christian  and, 10 

Consuls  in,  11 

North  German  Confederation 

Origin  and  organization, 20 

Notice  of  Hostilities 

Whether  or  not  to  be  given, 53 

OCCUPATION 

^"^       See  Militarj'  Occupation, 


Offensive  War 

Definitionof, 46 

xiii 


Official  Relations 

Breakingoff, 56 

Organization  of  Arbitration 

Discussion  of, 36 

Origin  of  Rules 

Of  International  Law, _ _..     8 

jpARis,  Declaration  of 

\  Of  1856, 4,70 

Parlementaires 

Cause  of  arrest  of, 156 

Definition  of, 163 

Parole 

Definition  of, _ 116 

Pay 

Of  sanitary  personal  while  with  enemy, 143 

Peace  Conference 

Name  of,  misleading, 36 

Peaceful  Blockade 

Defined, _ j 42 

Perfidious  Methods 

Classification  of, 99 

Permanent  Court  of  Arbitration 

Does  not  in  reality  exist 36 

Personal  Union 

Definition  of, 16 

Personnel 

Of  aid  societies  assimilated  to  official  personnel,  _    133 

Sanitary, 131 

Persons 

Situation  of,  in  war, 61 

Pillage 

Definition  of , 98 

Distinction  between  booty  and  pillage, 205 

Positive  Law 

Definition  of, -    1 

xiv 


Precedence 

Of  diplomatic  agents, 12 

Prisoners  op  War 

Assistance  for, 119 

Escape  of, 115 

Exchange  of , 121 

General  conditions  of, 113 

Historical  facts, 112 

Information  in  regard  to, 119 

Repatriation  of, 121 

Succor  for, 119 

Work  of, 115 

Private  Law 

Definition  of, 2 

Prize  Court,  International 

Establishment  of, 38 

Prize  Money 

Reforms  necessary  in  system  of, 217 

Regulations  governing, 208 

Prizes 

French  regulations  governing, 207 

Projectiles 

Employment  of,  containing  gases, 89 

Thrown  from  balloons,  88 

Property 

Confiscation  of, 64 

Difference  between  war  at  sea  and  on  land  in 

re  to  private  property 214 

Effect  of  war  on, 195 

Invader  occupies  but  does  not  acquire  real  property  196 

In  war, 64 

Policy  of  occupant  in  occupied  territory  respecting  197 

Personal  property  rights  in  occupied  territory, 198 

Private  property  to  be  respected  in  war, 210 

Protectorate 

Status  of  in  war, 58 

Public  Law 

Definition  of, 1 

xv 


QUARTER 
Refusal  of, 90 

T^  AILROAD8  IN  WAR 

"^        Commercial  use  of  by  occupant, ..239 

Exploitation  of,. 235 

Importance  of,. 234 

Rights  of  belligerent  over, 236 

Rights  of  occupant  in  Testations,  rolling  stock, 

etc., 237 

Rolling  stock  of  neutral  states, 239 

The  right  of  way, 236 

Red  Cross 

Flag  to  be  accompanied  by  national  flag, 151 

Heraldic  emblem  of, _ . .  148 

Repression  of  abuses  of  insignia, 152 

Use  of  emblem  of 138 

Red  Cross  Societies 

Origin  of, 124 

Reducing  a  City 

Methods  of, 93 

Refusal  of  Quarter 

The  Hague  declares  it  improper, 90 

Reprisals 

Are  acts  of  violence,.. 41 

Definition  of, 244 

Requisitions 

Authorities  to  whom  they  should  be  addressed,  ...  223 

Authority  for,  created  by  law  and  regulations, 226 

Definition  of, 218 

Form  in  which  to  be  exercised, 223 

Limits  to  right  of,. _. 220 

Of  things,. 219 

Order  of, 223 

Receipts  for, 223 

Right  of, 223 

Retorsion 

Definition  of, 41 

Revictualing 

During  an  armistice, 174 

xvi 


Rousseau,  J.  J. 

His  principles  as  to  rights  of  war, _    66 

Rules 

Annexed  to  The  Hague  Convention, 74 

Rupture  op  Diplomatic  Relations 

Defined  and  discussed, .  _  56 

Ruses 

Are  admissable  by  rules  of  The  Hague  Conference,  101 

QAPE  CONDUCTS 

®  Definition  of,.. _ 159 

Safeguards 

Definition  of, 159 

Distinction  between  dead  and  live  safeguard 160 

St.  Petersburg 

Declaration  of  in  1868, 6,  70 

Sanitary  Establishments 

Formation  of, 128 

Materiel  of  fixed, . 144 

Respect  and  protection  due  to, 129 

Sanitary  Materiel 

Subject  to  laws  of  war, 204 

Sanitary  Personnel 

Definition  of  which  may  not  be  taken  prisoner, ...  131 

In  power  of  enemy, 140 

Pay  of  while  with  enemy, 143 

Second  Hague  Conference 

In  1907,  __ 7,37 

Semi-Sovereign  States 

Definition  of, 14 

Sick  and  Wounded 

Treatment  of  in  hands  of  enemy, 123 

Siege  Warfare 

What  cities  may  be  attacked, 91 

Situation  of  Persons 

In  war, 61 

xvii 


Sovereign  States 

Definition  of, 13 

Spies 

Definition  of,. 105 

State 

Definition  of, 2 

States 

Classification  of, 12 

Different  forms  of, 16 

Semi-sovereign, 14 

Sovereign, 13 

Vassal, 14 

States,  Neutralized 

Definition  of, 49 

States  of  the  Union 

International  standing  of, 23 

States,  Protected 

Definition  of, 49 

States,  Vassal 

Definition  of, 14,  49 

Status  of  in  war  58 

Status  of  Neutrality 

Definition  of, 56 

Suspension  of  Arms 

Essentially  a  military  convention, 169 

Swiss  Confederation 

Discussion  of, 24 

'-pAXES 

Right  of  occupant  to  collect, 192 

Treason 

Definition  of,. 101 

Treaties 

Are  conventions, 9 

Definition  of, 157 

Effect  of  war  on  previously  concluded, 59 

How  made  in  United  States, 157 

Of  alliance,  _ 57 

xviii 


Treaty  of  Peace 

Between  Peru  and  Chile,. 170 

May  take  character  of  truce, 170 

Trent  Affair 

Discussed, 27 

Truce 

Definition  of, 169 

Treaty  of  peace  may  take  character  of, 170 

True  Union 

States  are  a  unit  in, 16 

T  TLTIMATUM 

^         Definitionof, 52 

Uniforms  of  Enemy 

Use  of, 102 

Union,  Personal 

Definition  of, 16 

Status  of  in  war, 57 

Union,  True 

Definition  of, 16 

United  States  of  America 

Discussion  of, 22 

Useless  Destruction 

To  be  forbidden  in  war, 91 

t  tassal  States 

*  Definitionof, 14,  49 

Status  of  in  war, 58 

Vatican 

Discussion  of  as  a  state, 18 

Violation  of  Armistice 

Discussion  of, 176 

Violent  Results  of  International  disputes 

What  they  consist  in 41 

Volunteers 

In  maritime  war, 80 

xix 


w 


AR 

At  sea, _.  47 

Civil,  definition  of, 48 

Classification  of, 46 

Declaration  of, 50 

Defensive, 46 

Definition  of, 44 

Just  and  unjust, 47 

Laws  of, 66 

On  Land, 47 

Off enni ve, 46 

Properly  so-called, 48 

Purpose  of, ■ 45 

Who  has  the  right  to  make, i„  48 

Warfare,  Siege 

Definition  of  what  cities  may  be  attacked, 91 

War  Traitor 

Definition  of, 111 

Wounded  and  Sick 

Treatment  of,  in  hands  of  enemy, 123 


\ 


xx 


Lectures  on  International  Law,  Having 

Particular  Reference  to  the  Laws  of 

War  on  Land 


Based  on  notes  of  lectures  delivered  by 
Prof.  Renault,  of  the  Institut  de  France 


FIRST  LECTURE 

Gentlemen  of  the  Staff  College: 

^^^HESE  lectures  will  have  for  their  main  purpose 
^^J  to  place  before  you  the  laws  of  war  on  land. 
The  subject  is  a  branch  of  international  law, 
and  the  most  important  branch  for  the  study  of  mil- 
itary men. 

International  law  is  the  modern  and  accepted 
definition  of  jus  gentium— the  law  of  nations,  a  form 
of  expression  still  used  in  Germany  as  "Volkerrecht." 
The  modern  and  better  name  of  "International  law," 
i.e.,  "the  law  between  nations,"  is  believed  to  have 
had  its  inception  at  the  end  of  the  XVIII  cen- 
tury when  Bentham  so  translated  the  title  of  an  old 
work,  "de  jure  inter  gentes,"  and  it  certainly  des- 
cribes the  law  better  than  does  the  older  term. 

In  the  study  of  international  law,  a  division  has 
sometimes  been  made  between  the  natural  law  and 
the  positive  law;  the  former  comprises  the  law  as  it 
ought  to  be,  and  the  latter  the  law  as  it  actually  is, 
under  present  conditions;  or  I  might  say  the  former 
is  the  theoretical,  altruistic  law,  and  the  latter  the 
practical  law  under  which  the  nations  meet. 

There  is  also  another  division  of  international 
law— the  public  law  which  regulates  conditions  be- 


2  :*  ;  ■•,Flk«S4V  LECTURE 

tween  states,  and  the  private  law  which  regulates 
questions  between  private  persons  of  different  na- 
tionalities. 

It  is  with  the  positive  and  public  law  that  we 
have  to  do  in  these  lectures. 

When  in  international  law  we  speak  of  a  nation 
we  use  the  word  as  being  synonymous  with  state— a 
political  unit  of  greater  or  lesser  extent. 

While  the  colloquial  use  of  the  word  '  'nation* '  is 
also  the  one  I  have  just  outlined,  its  meaning  may 
not  always  be  that  of  a  state.  While  a  state  is  a 
unit  obedient  to  a  single  authority,  which  to  the 
world  at  large  represents  a  whole,  a  nation  may 
mean  a  grouping  of  men  having  the  same  tongue, 
the  same  customs,  the  same  aspirations,  and,  usually, 
a  common  origin.  Sometimes  in  such  cases  the  na- 
tion and  the  state  are  the  same;  such  is  the  case  with 
France.  Sometimes,  as  the  result  of  political  or  his- 
torical events,  a  nation  is  divided  among  several 
states;  this  is  the  case  with  the  Polish  nation.  Italy 
for  a  long  time  was  a  nation  divided  up  into  a  number 
of  states,  and  today,  Italy,  in  order  to  complete  her 
national  entity,  claims  from  Austria,  territory  situ- 
ated around  Trieste  and  known  to  patriotic  Italians 
as  "Italia  irredenta."  In  the  Austrian  Empire  we 
have  the  converse  of  this  proposition,  as  Hungary 
claims  to  be  a  nation  united  with  other  nations  and 
parts  of  nations  in  the  state  of  Austria-Hungary. 

The  national  feeling,  though  usually  purely  sen- 
timental, is  apt  to  be  a  very  strong  one,  and  fre- 
quently is  derived,  as  I  have  stated,  not  so  much 
from  the  fact  of  a  common  unity  at  some  prior  time 
as  from  a  common  origin  of  race.  The  troubles  in 
the  Balkans  are  largely  sustained  by  the  interest 
which  Russia  maintains  in  the  Slavic  race.  So,  too, 
there  can  be  no  doubt  that  in  the  United  States  there 
is  in  the  heart  of  many  of  the  people  an  affinity  for 


INTERNATIONAL    LAW  3 

England,  which  is  not  felt  for  other  countries,  due  to 
the  common  origin  of  the  two  states,  their  common 
language  and  ideas.  It  is  this  national  feeling  which 
today  binds  to  England  her  great  autonomous  colon- 
ies such  as  Canada,  those  in  Australia,  etc.  A  com- 
mon Teutonic  origin  and  language  has  also  been  the 
strongest  factor  in  establishing  the  present  German 
Empire. 

It  is  in  the  sense  of  a  state  that  the  word  nation 
will  be  used  hereafter  in  these  lectures. 

Origin  of  the  Rules  of  International  Law 

The  ordinary  or  municipal  rules  of  law  are  estab- 
lished by  the  supreme  law-making  authority  of  a  state 
and  are  binding  upon  all  who  owe  allegiance  to  that 
state.  As  between  states,  however,  each  being  sov- 
ereign, there  is  no  mutual  law-making  authority  and 
no  common  superior.  It  is  thus  obvious  that  muni- 
cipal laws  and  international  laws  must  originate  in 
an  entirely  different  manner.  Municipal  laws  are  im- 
posed by  a  state  upon  itself;  international  laws  are  the 
result  of  common  consent  between  states. 

This  consent  may  be  shown  in  two  ways: 

First,  by  express  agreements  in  writing. 

Second,  by  accepted  custom. 

In  the  second  case  we  have  something  analogous 
to  what  in  English  speaking  countries,  we  call  the 
common  law. 

Many  rules  of  International  Law  have  no  other 
basis  than  custom.  Such  for  instance  is  the  inviola- 
bility of  diplomatic  agents  and  the  fact  that  they 
are  not  amenable  to  the  tribunals  of  the  foreign 
country  where  they  may  be.  Until  very  recent  years 
the  laws  of  war  on  land  were  purely  matters  of  cus- 
tom, we  may  take  the  respect  due  to  a  flag  of  truce 
as  an  example.  Belligerents  observed  certain  rules 
and  abstained  from  certain  acts  and  the  customs  so 


4  FIRST    LECTURE 

arising  gradually  became  crystallized.  Where  a  cus- 
tom is  general  in  its  observance  it  may  be  taken  as 
truly  representing  the  interests  of  all,  whereas  a 
formal  convention  may  be  imposed  by  the  strong  on 
the  weak  and  may  only  really  represent  the  interests 
of  some  one  party. 

Rules  maintained  by  custom,  however,  are  not 
always  satisfactory,  they  are  hard  to  prove,  since 
they  are  not  in  writing.  They  are  sometimes  vague 
and  lack  precision  and  there  is  no  certainty  that  they 
will  be  observed  by  an  adversary. 

For  the  last  sixty  years  the  evolution  of  ideas 
has  pointed  to  a  determined  codification  of  the  laws 
of  war  which  would  transfer  the  law  of  custom  into 
a  positive  written  law.  The  advantage  of  this  was 
manifest  but  its  execution  demanded  distinct  agree- 
ments among  the  nations.  Such  agreements  may 
take  different  names;  the  most  usual  is  that  of  ' 'con- 
vention" (an  agreement  between  two  or  more  parties, 
individuals  or  states,  to  evidence  reciprocal  obliga- 
tions), the  terms  "declarations"  or  "arrangement" 
are  also  used,  the  term  made  use  of,  however,  is  of 
little  importance. 

1st.  The  Declaration  of  Paris,  (16th  of  April, 
1856),  may  be  considered  as  the  point  of  departure 
for  the  evolution. 

Plenipotentiaries  met  in  congress  in  Paris  at  the 
end  of  the  Crimean  War.  The  war  had,  from  a  naval 
standpoint,  presented  the  somewhat  singular  spec- 
tacle of  two  powers—France  and  England  —  which 
had  long  been  enemies  and  had  upheld  different 
principles,  in  regard  to  maritime  war,  becoming 
allies  and  for  the  time  being  obliged  to  concert  their 
divergent  practices.  The  rules  on  which  these  two 
nations  had  agreed  provisionally  and  on  which  they 
acted  as  a  modus  vivendi  during  the  war,  served  as 
the  basis  of  the  Declaration  of  Paris. 


INTERNATIONAL    LAW  5 

The  declaration  was  signed  by  the  representatives 
of  the  then  five  great  powers  (France,  England,  Russia, 
Prussia  and  Austria),  and  later  by  Turkey  and  Sardinia 
who,  during  the  war,  had  appeared  as  belligerents. 
The  declaration  was  to  be  brought  to  the  attention  of 
the  other  states,  who  were  invited  to  adhere  to  it. 
This  was  the  method  employed  at  that  period. 

The  rules  were  accepted  by  almost  all  the  powers. 
(They  were  not,  however  submitted  to  Japan,  which 
at  that  period  did  not  enjoy  the  normal  relations  of 
a  recognized  power.  But  since  1886  Japan  has  spon- 
taneously accepted  them.) 

The  declaration  contained  four  rules: 

a.  Privateering  is  and  remains  abolished. 

6.  The  neutral  flag  covers  the  enemy's  goods, 
except  contraband  of  war. 

c.  Neutral  goods,  except  contraband  of  war,  are 
not  liable  to  capture  under  the  enemy's  flag. 

d.  Blockades,  to  be  binding,  must  be  effective. 

The  United  States  declined  to  accede  to  the  dec- 
laration as  a  whole.  Its  small  naval  force  forbade 
its  relinquishing  the  right  to  employ  privateers  in 
time  of  war.  It  was  held,  however,  that  all  the 
rules  or  none  must  be  subscribed  to.  If  a  rule  could 
have  been  adopted  exempting  all  private  property 
from  capture  at  sea  in  time  of  war,  the  United  States, 
would  gladly  have  acceded.  Without  the  incentive 
of  private  goods  to  be  captured  there  would  be  no 
privateering. 

2d.  In  1863,  there  was  published  to  the  Army 
of  the  United  States,  General  Orders  100,  "Instruc- 
tions for  the  Government  of  Armies  of  the  United 
States  in  the  Field.' '  These  instructions  were  pre- 
pared by  Dr.  Francis  Lieber,  and  form  a  complete 
code  of  the  laws  of  war.  They  had  of  course  no  in- 
ternational force  and  were  entirely  unilateral  in  that 
they  instructed  our  army  alone  as  to  its  duties. 


6  FIRST    LEOTURJE 

Nevertheless  it  was  the  first  code  of  its  kind  and 
virtually  represents  the  law  today  as  clearly  as  it  did 
fifty  years  ago.  Some  European  jurists  appear  to 
have  minimized  the  value  of  Dr.  Lieber's  work. 
From  this  statement  we  must  pointedly  exempt, 
however,  the  learned  Dr.  Bluntschli  who  deemed  the 
code  to  have  the  highest  merit  and  incorporated  it  in 
extenso  in  his  "  Volkerrecht. "  Both  in  his  writings 
and  in  conversation  Dr.  Bluntschli  did  not  hesitate 
to  maintain  that  General  Orders  100  must  serve  as 
the  foundation  for  the  codified  laws  of  war. 

3d.  We  come  next  to  the  Convention  of  Geneva, 
of  August  22,  1864,  which  regulates  the  disposition 
of  the  sick  and  wounded  on  the  field.  The  powers 
came  to  this  convention  in  greater  number,  and  the 
convention  has  been  successively  accepted  by  almost 
all  the  countries  in  the  world. 

4th.  Then  came,  in  1868,  the  Declaration  of  St. 
Petersburg  relative  to  the  prohibition  of  the  use  of 
certain  explosive  projectiles. 

5th.  In  1874,  at  Brussels,  an  attempt  was  made 
to  codify  the  laws  of  war  on  land.  (The  effort  was 
made  on  the  initiative  of  Russia,  and,  as  a  com- 
pliment to  that  initiative,  notwithstanding  the  cus- 
tom under  which  a  delegate  from  the  country  in 
which  the  conference  is  held  is  usually  made  presi- 
dent thereof,  the  presidency  of  the  meeting  was 
given  to  the  Russian  delegate,  son  of  the  celebrated 
Jomini.)  This  conference  resulted  only  in  a  pro- 
ject. As  an  outcome,  however,  of  the  Brussels 
Conference,  the  Institute  of  International  Law,  which 
met  at  Oxford  in  1880,  prepared  and  recommended  to 
the  nations  for  adoption  a  code  of  laws  for  war  on 
land.  This  code  presented  certain  features  which 
were  not  acceptable  and  it  was  not  adopted. 

6th.  In  1899  took  place  the  First  Peace  Confer- 
ence.   The  method  had  changed.      Instead  of  the 


INTERNATIONAL    LAW  7 

most  important  states  determining  on  the  rules  and 
later  submitting  them  to  the  other  powers,  an  invita- 
tion was  extended  to  the  greatest  possible  number  of 
states,  and  in  1899  there  were  twenty-six  states 
represented  at  The  Hague.  (The  number  twenty-six 
resulted  from  the  fact  that  only  those  powers  having 
representatives  at  St.  Petersburg  were  invited.  This 
explains  why  several  of  the  South  American  states 
were  not  represented. ) 

A  convention  of  importance  for  the  laws  and 
customs  of  war  on  land  was  adopted.  The  Brussels 
project  was  revised.  Certain  specific  declarations 
were  made,  among  others,  those  in  regard  to  the  use  of 
asphyxiating  projectiles  and  against  certain  forms  of 
bullets.  The  conventions  were  open,  other  states 
having  the  right  to  join. 

7th.  A  full  development  was  reached  in  1907,  at 
the  Second  Peace  Conference,  where  they  were  del- 
egates from  forty-four  states  out  of  the  forty-six 
which  had  been  invited  to  send  representatives. 

There  is  clearly  a  broad  and  liberal  view  in  this 
appeal  to  the  deliberation  of  all,  and  one  might  sup- 
pose that  a  rule  on  which  they  agreed  was  the  desire 
of  all.    But  nevertheless  there  are  difficulties. 

(a)  First,  it  is  necessary  that  the  delegates 
shall  understand  one  another.  At  The  Hague  all 
the  delegates  spoke  French  (except  the  Americans 
who,  after  the  French,  are  the  most  refractory  race 
to  the  acquisition  to  foreign  tongues.)*  But  not  all 
understood  it  after  the  same  fashion,  because  of  a 
different  turn  of  mind.  Intermediaries  were  necessary 
to  translate  to  some  the  thought  of  others;  this  was 
the  task  of  the  French  delegates. 

*This  is  a  statement  made  by  Prof.  Renault,  himself  a 
delegate.  I  am  inclined  to  believe  the  statement  to  be  inac- 
curate as  some  of  the  American  delegates  were  undoubtedly 
familiar  with  the  French  language. 


8  FIRST    LECTURE 

(b)  It  then  became  necessary  to  create  com- 
mittees and  sub-committees  in  order  that  the  needful 
work  might  be  carried  out. 

(c)  Finally,  it  was  necessary  to  overcome,  in 
certain  cases,  the  obstinacy  which  is  always  to  be 
met  with  in  these  large  assemblies.  The  small  states 
frequently  endeavor  to  show  their  independence 
by  opposition;  they  must  be  persuaded;  and  their  re- 
sistance must  be  made  to  disappear,  for  unanimity, 
the  accord  of  all  wills,  is  indispensable  in  these  con- 
ferences; otherwise  one  state  might  see  its  independ- 
ence threatened  by  a  coalition  of  the  others. 

All  these  difficulties  make  deliberation  very  slow. 
At  The  Hague,  after  four  months,  a  series  of  resolu- 
tions and  conventions  relating  to  war  on  land  and 
sea  were  reached. 

8th.  Finally,  as  the  last  stage  of  the  evolution, 
we  may  cite  the  Naval  Conference  at  London  from 
December,  1908,  to  February,  1909. 

This  resulted  from  the  Second  Peace  Conference 
and  was  an  attempt  to  solve  certain  questions  for  the 
consideration  of  which  there  had  been  at  The  Hague 
want  of  time  as  well  as  of  good  will.  Ten  powers 
went  to  London,  of  which  eight  considered  them- 
selves as  great  powers  having  important  maritime 
interests  (France,  England,  Russia,  Germany,  Aus- 
tria, Italy,  the  United  States  and  Japan.)  It  would 
have  been  unfortunate  had  the  great  powers  been 
alone  represented,  since  they  are  destined  to  fill  the 
roll  of  belligerents,  and  in  a  naval  war  it  is  necessary 
to  consider  the  rights  and  interests  of  neutrals.  It 
was  well,  therefore,  that  the  smaller  powers  should 
also  be  represented,  as  they  were  by  Spain  and  Hol- 
land. 

Besides  this,  the  powers  requested  England  to 
invite  the  countries  which  were  not  represented  to 
accept  the  rules  of  the  conference.    It  is  probable 


INTERNATIONAL    LAW  9 

that  the  adhesion  of  all  will  be  obtained.  Norway, 
perhaps,  will  present  some  difficulty,  as  its  feelings 
were  hurt  at  not  being  invited  to  the  conference, 
although  it  is  the  fourth  ranking  country  in  the 
world  as  to  its  merchant  marine. 

It  is  thus  clear  that  there  is  a  desire  to  have  a 
positive  written  law  governing  the  conduct  of  bellig- 
erents on  land  and  at  sea,  and  that  the  law  should 
result  from  the  consensus  of  all  the  nations.  The  great 
desideratum  is  that  this  consensus  be  permanent  be- 
cause the  conventions  maybe  denounced;  the  nations, 
however,  have  agreed  that  such  denouncement  shall 
not  go  into  effect  until  a  year  after  notice  thereof  is 
given,  and,  therefore,  the  denouncement  of  a  con- 
vention a  day  after  a  declaration  of  war  is  guarded 
against. 

Over  and  above  the  written  rules  and  the  customs 
now  accepted  by  all,  or  practically  all  the  nations,  each 
country  may  institute  regulations  and  give  instructions 
to  its  armies,  to  its  fleets,  and  to  its  agents.  These 
regulations  and  instructions,  while  obligatory  upon  the 
parties  and  individuals  belonging  to  the  government 
which  establishes  them,  have  no  value  from  the  view- 
point of  international  law,  but  it  may  be  interesting 
to  know  the  rules  peculiar  to  a  given  country,  in 
order  to  know  what  guarantees  may  be  expected  of 
that  country  with  respect  to  international  law. 

Of  this  nature  are  the  rules  contained  in  General 
Orders  100,  of  1863,  and  the  rules  now  contained 
in  the  Field  Service  Regulations  of  1913.  The  former 
are  binding  upon  the  Army  of  the  United  States,  ex- 
cept where  they  may  come  in  conflict  with  the  rules 
contained  in  a  convention  to  which  the  United  States 
is  a  party.  It  should  be  remembered  that  where  a 
convention  is  entered  into  with  one  or  more  foreign 
nations  by  our  government  and  is  ratified  as  required 
by  law,  the  convention  is  a  treaty  and  as  such  as 


10  FIRST    LECTURE 

much  the  law  of  the  United  States,  as  is  any  statute 
enacted  by  Congress;  regulations,  as  we  know,  cease 
to  have  force  when  in  conflict  with  statute  law. 

Old  Distinctions  of  the  Law  of  Nations 

International  law  now  tends  to  become  universal 
and  to  bind  all  the  powers  of  the  world.  For  a  long 
time,  however,  a  different  idea  obtained. 

It  seemed  formerly  as  though  international  law 
had  a  local  character.  One  spoke  of  the  European 
law  of  nations.  It  is  true  that  this  law  was  not  lim- 
ited to  Europe,  but  was  also  applied  to  the  United 
States,  an  old  European  colony.  Nor  did  it  apply  to 
the  whole  of  Europe— Turkey  was  beyond  its  limits. 
For  the  latter  power  the  situation  was  changed,  on 
paper,  by  the  Treaty  of  Paris,  which  admitted  Turkey 
to  the  European  concert.  It  would  seem,  however, 
that  this  unfortunate  country,  while  technically 
recognized  as  one  of  the  powers,  has  nevertheless  re- 
mained the  plaything  of  diplomacy  and  the  recent 
war  points  to  its  disappearance  as  a  factor  in  the 
councils  of  nations.  Nevertheless,  so  far  as  war  is 
concerned,  Turkey  is  bound  by  the  Geneva  and  The 
Hague  Conventions. 

The  laws,  religion  and  views  on  the  conduct  of 
affairs,  which  existed  in  Turkey— not  to  mention  the 
non-European  countries  which  recognize  Turkey  as 
their  suzerain— were  of  so  different  a  character  from 
those  which  regulated  the  rest  of  Europe,  as  to  place 
Turkey  in  regard  to  international  recognition,  on  a 
different  plane  from  the  rest  of  the  powers. 

That  which  existed  for  Turkey  existed  also  for 
the  other  countries,  and  it  became  the  custom  to 
make  the  distinction  of  Christian  countries  or  non- 
Christian  countries.  The  latter  comprised,  at  first, 
those  in  the  Levant;  afterwards  their  number  was 


INTERNATIONAL    LAW  11 

augumented  by  other  states— China,  Japan,  etc.,— 
as  international  relations  became  enlarged. 

The  essential  character  of  this  distinction  is,  that 
in  the  non-Christian  countries  foreigners  remain  in 
a  great  measure  under  their  own  national  authority 
as  represented  by  their  consuls.  Nothing  like  this 
occurs  in  Christian  countries.  There,  any  such  power 
in  a  consul  would  be  considered  as  striking  at  the 
root  of  local  territorial  authority.  In  most  of  the 
non-Christian  countries  an  alien  was  not  triable  by 
the  local  courts,  but  by  a  consul  of  his  own  nation. 

The  expression  "non-Christian"  has  become  in- 
exact, particularly  during  the  past  fifteen  years.  In 
the  extreme  Orient,  Japan  was  in  the  first  rank  of 
non-Christian  countries.  With  great  tenacity  of 
purpose  Japan  has  endeavored  to  rid  itself  of  what  it 
considered  a  derogation  of  its  dignity,  and  since  1884 
has  been  making  treaties  with  other  nations  for  the 
purpose  of  freeing  itself  from  the  old  situation  and  of 
entering  the  regime  of  the  common  law.  Its  efforts, 
aided  by  its  victories  over  China,  and  more  recently 
by  its  war  with  Russia,  have  produced  the  desired 
result,  and  today  Japan  is  within  the  regime  of  the 
universal  law. 

On  the  other  hand,  a  country  which,  in  law,  is 
Christian— Bulgaria— is  subject  to  an  exceptional 
regime  (the  regime  "des  capitulations")  by  virtue  of 
the  Treaty  of  Berlin.  This  regime  has  been  minim- 
ized, and,  due  to  the  fact  that  Bulgaria  has  become 
a  kingdom,  that  country  may  invoke  the  common 
law;  but  the  kingdom  is  not  fully  recognized  and, 
therefore,  its  status  is  still  uncertain.  The  posi- 
tion of  Bulgaria  will  undoubtedly  be  greatly  strength- 
ened ultimately  by  the  result  of  the  recent  war. 

The  present  state  is  one  of  evolution.  As  coun- 
tries become  more  and  more  civilized,  they  become 
more  and  more  sensitive  to  attempts  upon  their  inde- 


IS  FIRST    LECTURE 

pendence  and  their  dignity.    Thus  Siam  is  at  present 
making  efforts  to  place  itself  under  the  general  law. 

Of  States 

States  may  be  classified  as  great  powers,  medium 
powers  and  small  powers,  the  classification,  depend- 
ing today  on  the  question  of  fact.  In  olden  times  the 
classification  was  made  by  the  Pope.  The  Ecumeni- 
cal Councils,  which  have  been  replaced  by  our  diplo- 
matic conferences  of  today,  were  composed  not  only 
of  ecclesiastics  but  also  of  delegates  of  the  sovereigns 
who  caused  themselves  to  be  represented.  There 
were  great  difficulties  in  regard  to  precedence.  In 
1815,  at  the  Congress  of  Vienna,  an  effort  was  made 
to  officially  classify  states  into  three  categories.  The 
idea,  however,  was  abandoned  in  order  not  to  pro- 
duce ill  feeling.  A  classification  was  then  made  ac- 
cording to  a  protocol  based  on  the  recognition  of  the 
equality  of  all  states.  There  was  first  established  a 
hierarchy  between  representatives,  the  Ambassador 
being  given  precedence  over  the  Minister  Plenipoten- 
tiary, who  in  turn,  had  precedence  over  a  Charge 
d'Affaires,  etc.  But  in  a  capital  city  there  may  be 
several  Ambassadors  belonging  to  different  powers. 
Who  precedes,  who  passes  ahead  of  the  other?  The 
rule  is  that  they  rank  in  accordance  with  the  order  of 
their  arrival  in  the  country  to  which  they  are  ac- 
credited. Thus,  there  is  no  classification  in  law, 
nothing  which  would  shock  the  susceptibilities  of 
anyone.  (In  the  olden  time  the  Papal  Nuncio  was, 
by  courtesy,  always  the  dean  of  the  diplomatic  corps 
in  all  Catholic  countries). 

It  may  be  well  to  state  here  that  broadly  speak- 
ing an  Ambassador  is  the  personal  representative  of 
his  sovereign  and  has  the  right  to  interview  person- 
ally the  sovereign  to  whose  court  he  is  accredited. 
Lesser  envoys,  such  as  Ministers,    represent    their 


INTERNATIONAL     LAW  13 

government  only,  and  conduct  their  business  with 
the  government  to  which  accredited  through  the 
Foreign  Minister  or  through  some  other  representa- 
tive of  the  sovereign.  For  this  reason,  for  many 
years  the  United  States  neither  maintained  nor  re- 
ceived Ambassadors.  Today  the  rule  has  been  modi- 
fied and  the  inconvenience  to  which  the  Ministers  of 
the  United  States  were  put  abroad,  by  being  ranked 
by  Ambassadors  of  the  most  unimportant  states  has 
led  the  United  States  to  maintain  Ambassadors  at  the 
capitals  of  the  principal  powers  whenever  these  pow- 
ers accredit  Ambassadors  to  Washington. 

Sovereign  States.— Sovereign  states  are  those 
which  may  enter  into  relations  with  other  states. 
In  law,  all  sovereign  states  are  equal.  As  a  matter 
of  fact,  they  are  not.  Thus,  certain  questions  have  a 
European  character,  and  it  is  admitted  they  cannot 
be  regulated  without  the  assent  of  the  great  powers. 
Things  which  have  been  done  by  these  great  powers 
must  be  accepted  by  the  others.  Belgium  was  neu- 
tralized by  the  five  great  powers,  and  another  country 
may  not  come  and  say:  "I  do  not  recognize  the  neu- 
tralization of  Belgium,  I  was  not  a  member  of  the 
Congress."  Of  recent  years  the  United  States  has 
become  a  factor  in  world  questions,  as  has  Japan  in 
matters  affecting  the  Orient. 

The  position  taken  by  the  United  States  under 
what  is  called  the  Monroe  Doctrine  is  well  known. 
This  doctrine  which  appears  undoubtedly  to  have 
been  suggested  to  us  by  the  British  Government,  and 
which  was  aimed  at  certain  European  tendencies  of 
the  time,  which  it  was  thought  might  serve  to  rees- 
tablish monarchial  conditions  on  the  western  conti- 
nent, amounts  today,  it  would  seem,  to  a  warning  to 
the  European  powers  that  no  interference  by  them 
with  the  affairs  of  the  American  continent  will  be  per- 
mitted  (except  of  course  in  so  far  as  they  already 


14  FIRST     LECTURE 

have  possession  thereon).  While  the  doctrine  is  still 
officially  couched  in  language  which  is  reminiscent  of 
its  original  purpose,  the  practical  use  of  the  doctrine 
indicates  the  evolution  which  I  have  just  mentioned. 
Since  the  United  States  has  assumed  this  position  it 
would  not  seem  logical  that  it  should  undertake  to 
interfere  in  European  concerns,  and  yet  there  is  a 
decided  tendency  that  way,  accentuated  by  our 
Asiatic  interests. 

Semi-Sovereign  States.— In  certain  cases  there 
are  differences  more  clearly  marked.  There  are  semi- 
sovereign  states  which  have  not  full  sovereignty. 
That  which  is  lacking  in  general  to  such  states  is 
their  freedom  in  relation  to  external  matters.  Such 
are  the  protected  states  of  Tunis,  Annam,  and  Korea, 
which  is  actually  under  the  protection  of  Japan  and 
is  no  longer  even  represented  in  international  confer- 
ences. It  would  be  perhaps  more  in  accordance  with 
truth  to  say,  that  today,  Korea  has  been  fully  an- 
nexed. As  to  the  precise  position  which  Tripoli  will 
hold  as  a  result  of  its  recent  occupation  by  Italy  it  is 
too  early  to  guess.  It  is  probable  that  its  annexation 
will  be  complete. 

Vassal  States.  -  Finally,  there  were  vassal 
states.  This  expression  was  taken  from  the  middle 
ages  and,  singularly  enough,  was  employed  to  express 
the  relations  between  countries  which  had  never 
known  the  feudal  system.  Servia,  Moldavia  and  Wal- 
lachia,  were  vassals  of  Turkey,  to  whom  they  paid  tri- 
bute. This  situation  passed  away  in  1878,  the  princi- 
palities having  become  independent.  The  same  treaty 
had  created  the  principality  of  Bulgaria,  and  had  de- 
clared it  a  vassal  of  the  Sultan.  Today  the  situation 
is  changed  in  fact,  but  not  in  law,  since  a  modifica- 
tion of  the  Treaty  of  Berlin  (1878)  is  legal  only  after 
the  acceptance  thereof  by  the  signatory  powers. 
Bulgaria  has  declared  its  independence  and  its  prince 


INTERNATIONAL    LAW  16 

has  assumed  the  title  of  King,  or  Czar,  of  the  Bulgars; 
it  is  probable  that  the  conferences  which  must  follow 
the  recent  war  will  grant  to  Bulgaria  the  recognition 
which  the  signatory  powers  of  the  Treaty  of  Berlin 
have  heretofore  refused. 

Moldavia  and  Wallachia  are  now  incorporated  in 
the  Kingdom  of  Roumania.  There  has  been,  as  a 
result  of  the  recent  war,  a  recasting  of  the  small 
states  which  have  been  gradually  carved  out  of  Tur- 
key and  they  will  receive  a  recognition  which  has 
heretofore  been  denied  them.  The  affairs  of  the 
Balkan  Peninsula  are  however,  at  present  in  too 
chaotic  a  state  to  permit  one  to  forsee  what  the  ulti- 
mate settlement  will  be. 

Peculiar  Situation  of  Egypt.  —A  country  which 
is  a  dependency  of  Turkey,  and  in  regard  to  which 
there  are  many  erroneous  ideas,  is  Egypt.  Is  Egypt 
a  state?  Is  it  a  tributary?  Is  it  a  vassal?  It  pays 
tribute,  it  is  true,  but  it  is  in  a  most  peculiar  position. 

1st.  It  is  today,  and  has  been  for  many  years, 
in  law,  a  privileged  province,  but  it  is  bound  to 
Turkey  by  very  slender  ties.  The  sovereignity  of 
Turkey  is  recognized  only  in  the  form  of  a  tribute. 
Once  the  the  tribute  is  paid,  Egypt  considers  itself 
free.  Whenever  Turkey  has  been  at  war  with  a  na- 
ion,  Egypt  has  declined  to  consider  herself  at  war 
with  that  nation;  in  1897  the  situation  appeared 
absurd  and  Greece,  then  at  war  with  Turkey,  with- 
drew her  consuls  from  Egypt.  Egypt  has  obtained 
a  real  emancipation  since  the  time  of  the  Khedive 
Ismail,  who  had  caused  himself  to  be  given  the  right 
to  contract  loans  (a  right  which  he  greatly  abused), 
and  who  had  acquired  a  certain  autonomy. 

2d.  But  along  with  this  there  is  a  condition  of 
fact;  since  1881  a  British  corps  of  occupation  has 
been  in  Egypt.  It  is  true  that  the  representative  of 
England  is  in  a  position  analogous  to  that  of  the  rep- 


16  FIRSTLECTURE 

resentativesof  the  other  powers,  but  he  also  fills  the 
roll  of  counselor,  and  besides  this,  there  is  an  English 
adviser  attached  to  each  important  ministry,  and 
their  advice  is  generally  heeded.  There  is  therefore, 
as  a  matter  of  fact,  a  true  '  'influence. "  Added  to  this 
is  the  fact  that  an  English  garrison  is  maintained  and 
that  military  affairs  in  Egypt  are  virtually  in  British 
hands.  (France,  which  might  best  have  disturbed  this 
occupation,  renounced,  in  1904,  any  effort  to  counter- 
act the  British  pretensions. ) 

Different  Forms  of  States 

At  times  states  present  peculiar  forms.  Besides 
what  I  will  call  the  simple  form,  constituting  an  in- 
divisible whole,  such  as  France,  Italy  or  Spain,  the 
following  forms  may  present  themselves. 

Personal  Union.— In  the  past  we  have  seen 
states  obeying  a  single  sovereign  while  retaining  their 
own  personality.  Such  were  England  and  Hanover  for 
many  years  (from  1714  to  1837)  prior  to  the  accession 
to  the  British  throne  of  Queen  Victoria;  so,  also,  were 
Holland  and  the  Grand  Duchy  of  Luxemburg  prior  to 
the  accession  of  the  present  sovereign  of  the  Neth- 
erlands. I  am  inclined  to  take  the  view  that  England 
and  certain  of  her  great  colonies  are  practically  states 
of  this  nature  although  the  form  of  a  political  union  is 
still  maintained.  Belgium  and  the  Congo  Free  State 
belonged  to  this  type.  Both  had  for  their  sovereign 
the  King  of  the  Belgians.  Since  the  death  of  the  late 
King,  however,  the  Congo  State  has  passed  into  the 
possession  of  Belgium. 

True  Union.  — In  a  true  union,  the  states  are  a 
unit  from  the  external  point  of  view.  They  have  the 
same  flag,  the  same  sovereign,  and  the  same  diplo- 
matic representation;  such  is  the  case  of  Austria- 
Hungary.  Sweden  and  Norway  represented  not  long 
ago,  an  example  of  a  true  union.    Recently,  however, 


INTERNATIONAL    LAW  17 

Norway  seceded  from  the  union  and  is  now  a  separate 
independent  state  with  its  own  sovereign.  While  it 
is  true  that  Austria-Hungary  are  one  from  an  ex- 
ternal point  of  view,  we  find  in  the  combined  nation 
such  internal  differences  as  to  frequently  threaten 
the  principle  of  a  true  union ;  even  the  Austro-Hunga- 
rian  flag  is  formed  by  uniting  the  flags  of  Austria 
and  Hungary. 

States  like  individuals  are  born,  are  transformed 
and  die.  The  disappearance  usually  is  the  result  of 
disturbances  or  of  external  or  internal  wars.  The 
XIX  Century  saw  the  birth  of  Belgium  and  of  Greece, 
and  of  recent  years  we  have  seen  the  birth  of  the 
Cuban  and  Panaman  republics,  and  of  the  Kingdom 
of  Norway  as  an  independent  political  unit.  The 
German  Empire  illustrates  the  transformation  of  a 
number  of  lesser  powers  into  one  of  the  great  pow- 
ers of  the  world.  The  disappearance  of  the  Kingdom 
of  Poland  is  a  matter  of  historical  interest.  France 
was  in  a  measure  transformed  by  the  incorporation 
after  the  war  of  1870,  of  Alsace  and  of  a  part  of  Lor- 
raine with  the  German  Empire.  Our  own  history 
shows  the  transformation  of  a  large  part  of  Mexico 
as  the  result  of  our  war  with  that  state.  The  death 
of  the  Kingdom  of  Hanover  came  in  1866. 

Exterior  sovereignty  consists  in  the  right  of  lega- 
tion, that  is,  the  right  to  enter  into  relations  with 
other  sovereign  powers  through  permanent  or  tempo- 
rary diplomatic  agents.  These  agents  who  vary  in 
rank  from  Ambassadors  to  plain  '  'Charges  d'aff airs" 
have  a  twofold  roll;  first  that  of  executive  agents  and 
second  that  of  what  I  will  call  observation  agents;  it 
is  more  particularly  to  the  latter  sphere  that  pertain 
the  duties  of  military  and  naval  attaches. 

With  these  we  must  not,  however,  confound  con- 
suls, who,  while  also  executive  agents  and  agents  of 
observation  are  not  diplomatic  agents  and  are  there- 


18  FIRST    LECTURE 

fore  not  entitled  to  the  immunities  which  the  latter 
enjoy.  It  is  true  that  there  are  certain  countries 
where  the  Consuls-General  occupy  a  quasi  diplomatic 
position,  but  this  is  by  custom  and  force  of  circum- 
stances and  not  by  virtue  of  international  law.  In 
Egypt,  technically  a  vassal  of  Turkey,  consuls-gen- 
eral formany  years  have  occupied  such  a  status. 

Exterior  sovereignty  may  also  exist  as  a  fiction 
of  international  law.  Thus  the  Vatican  maintains 
legations  at  certain  capitals  and  has  diplomatic  agents 
accredited  to  it.  When  in  1870  Italy  took  the  Papal 
states  and  occupied  the  city  of  Rome,  the  Pope  de- 
clined to  acknowledge  that  he  had  ceased  to  be  a 
temporal  sovereign  and  the  Italian  government  agreed 
that  certain  buildings  in  Rome  and  a  country  palace 
in  the  neighborhood  thereof,  should  still  be  under  the 
political  dominion  of  the  Pope.  The  latter  maintains 
a  military  force  and  as  already  said  has  diplomatic 
relations  with  several  foreign  states.  It  may  be 
added  that  this  peculiar  situation  of  the  Vatican  is 
due  to  the  religious  questions  involved. 

Certain  states  have  agreed  by  treaty  to  permit 
outside  interference  with  their  interior  sovereignty— 
such  are  Turkey  and  Panama.  It  is  seldom,  how- 
ever, that  this  interference  may  be  exercised  without 
considerable  trouble. 

While  in  law  all  sovereign  states  are  equal,  in 
practice  they  are  not,  and  we  have  at  present  an  il- 
lustration of  the  great  powers  virtually  dictating  to 
the  lesser  powers  in  the  Balkans  what  the  result  of 
their  victorious  war  with  Turkey  shall  be. 


SECOND  LECTURE 


Confederation  and  Federation 

J^WO  forms  of  political  unit  have  played  an  im- 
^J  portant  role  in  the  history  of  the  XIX 
century,— a  confederation  of  states,  and  a 
federal  state. 

The  classic  example  of  a  confederation  is  pre- 
sented by  the  German  states  from  1815  to  1866,  under 
the  regime  of  the  Germanic  Confederation. 

The  Germanic  Confederation.  -  Originating 
in  the  treaty  of  Paris  of  1814,  the  Germanic  Confed- 
eration was  organized  by  the  Federal  Pact  of  June  8, 
1815.  This  pact  left  to  each  state  its  independence, 
its  autonomy,  and  its  own  government,  but  estab- 
lished a  general  representation  of  the  common  inter- 
ests, in  the  form  of  the  Federal  Diet,  sitting  at 
Frankfort  under  the  presidency  of  Austria,  and  com- 
posed, not  of  representatives  elected  by  popular 
suffrage,  but  of  plenipotentiaries  designated  by  the 
various  confederated  sovereigns.  This  diet  reached 
decisions  in  regard  to  the  handling  of  the  common 
interests,  and  represented  the  confederation  in  its 
foreign  relations. 

Among  the  states,  members  of  the  confederation, 
were  certain  ones  which  had  entered  the  confedera- 
tion only  in  regard  to  a  portion  of  their  territory. 
Thus  Austria  in  particular,  left  outside  her  Italian 
possessions  (the  kingdom  of  Lombardy-Venetia) .  The 
Low  Countries  were  in  the  confederation  only  for 
the  Grand  Duchies  of  Luxemburg  and  Limburg; 
Denmark,  for  the  Duchies  of  Schleswig  and  Hol- 
stein;  Prussia  left  out  the  Duchy  of  Posen  and  the 
hereditary  provinces.    The  Federal  pact  was  appli- 

19 


90  SECOND    LECTURE 

cable  only  to  territory  comprised  within  the  confed- 
eration. Thus,  when  in  1859  Austria  was  at  war 
with  Piedmont  allied  to  France,  the  Confederation 
could  remain  neutral  even  though  Austria  was  its 
principal  member. 

The  Germanic  Con  federation  was  an  international 
person,  represented  by  the  diet,  having  the  right  to 
send  and  to  receive  diplomatic  agents;  as  a  matter  of 
fact,  the  confederation  exercised  its  right  of  lega- 
tion only  in  a  passive  form.  While  there  were  per- 
manent legations  accredited  to  the  diet  at  Frankfort 
by  the  foreign  powers,  it  was  only  the  exception 
when  the  diet  exercised  the  right  of  legation  in  its 
active  form. 

The  confederated  states  had  retained  intact 
their  interior  sovereignty  and  had  not  individually 
ceased  to  be  persons  from  the  standpoint  of  interna- 
tional law. 

Such  is  the  political  system  to  which  the  German 
states  were  subject  from  1815  on.  But  Prussia  was 
endeavoring  to  supplant  Austria  in  the  direction  of 
the  affairs  of  these  states,  and  the  latent  rivalry  ex- 
isting between  the  two  powers  took  on,  in  1860,  an 
accentuated  form.  The  conflict  had  its  outcome  in 
1866  when  Austria,  vanquished  at  Koniggratz  was 
forced  to  accept  the  Peace  of  Prague,  which  dissolved 
the  Germanic  Confederation  and  announced  a  recon- 
stitution  thereof  on  a  new  basis  of  an  association  of 
the  German  states. 

North  German  CoNFEDERATiON-The  Germanic 
Confederation  was  replaced  by  the  Confederation  of 
North  Germany,  under  the  hegemony  of  Prussia 
(Constitution  of  April  16,  1867). 

This  new  association  no  longer  comprised  Austria 
or  the  German  states  south  of  the  Main  (Bavaria, 
Wurtemburg,  Baden,  Hesse-Darmstadt),  but  only  the 
states  north  of  that  river,  of  which  the  most  import- 


INTERNATIONAL    LAW  21 

ant  was  Prussia,  enlarged  since  the  Austrian  War  by 
the  addition  of  Hanover,  Electoral  Hesse  (Hesse-Cas- 
sel),  Nassau  and  Frankfort.  But  if  the  number  of 
the  states  which  were  members  of  the  new  confed- 
eration was  less  than  under  the  older  system,  the 
ties  which  bound  them  were  much  stronger. 

The  presidency  belonged  to  Prussia ;  the  King  of 
Prussia  became  the  supreme  chief  of  the  army ;  other 
services  of  common  interest  (navy,  customs,  etc.) 
were  united ;  and,  finally,  the  federal  representation 
was  made  up  of  two  bodies,  the  Federal  Council,  cor- 
responding to  the  old  Diet,  and  the  Reichstag,  elected 
by  universal  suffrage ;  the  concurrence  of  these  two 
bodies  being  necessary  for  the  enactment  of  federal 
laws. 

On  the  other  hand,  since,  in  order  not  to  arouse 
the  susceptibilities  of  certain  foreign  powers,  the 
southern  states  were  left  outside  of  the  North  German 
Confederation,  diplomacy  had  charged  itself  with  the 
duty  of  attaching  them  thereto  on  the  military  side, 
by  treaties  of  alliance.  A  great  error,  therefore, 
was  committed  by  France  in  believing  that  Germany 
was  less  strong  after  Konniggratz.  The  war  of  1870 
gave  Germany  the  opportunity  to  conclude  the  politi- 
cal unity  commenced  in  1866,  and  on  January  18, 
1871,  the  North  German  Confederation  was  replaced 
by  the  German  Empire. 

German  Empire. —The  German  Empire  com- 
prises all  the  territory  of  the  North  German  Confed- 
eration, the  south  German  states,  and  Alsace-Lor- 
raine, this  last  being  a  federal  possession  (Reichsland), 
and,  as  such,  governed  directly  by  the  empire.  The 
supreme  authority  is  exercised  by  the  King  of  Prus- 
sia, who  has  the  title  of  German  Emperor,  and,  there- 
fore, it  is  in  the  Prussian  constitution  that  we  must 
look  for  the  rules  of  succession  to  the  imperial  throne. 

Has  the  constitution  of  the  German  Empire  (16th 


22  SECOND    LECTURE 

of  April,  1871),  led  to  the  disappearance  of  the  inter- 
national existence  of  the  private  states?  It  would  be 
going  too  far  to  answer  this  affirmatively,  since  states 
like  Bavaria  send  representatives  abroad  and  receive 
them  from  foreign  countries,  and  since,  also,  the 
same  states  may  conclude  certain  treaties  (such  as  the 
extradition  treaty  entered  into  in  1885  by  Bavaria 
with  Russia) .  We  may  say,  however,  that  from  the 
international  point  of  view,  and  as  a  material  matter 
of  fact,  it  is  only  the  empire  that  counts. 

From  the  standpoint  of  interior  administration, 
there  are  a  large  number  of  interests  which  the  Ger- 
man states  have  surrendered  in  favor  of  the  empire. 
There  is  a  parliament  which  exercises  the  general  leg- 
islative power,  and  is  composed  of  two  chambers : 
the  Federal  Council  (Bundesrath),  made  up  of  the 
representatives  of  the  government  of  the  states,  and 
the  Reichstag,  representing  the  popular  element  of 
the  empire.  A  law  of  the  empire  is  made  by  the  ac- 
cord of  the  two  chambers  ;  the  emperor  promulgates 
it  and  sees  to  its  execution. 

As  we  have  seen,  the  German  Empire  has  but 
little  resemblance  to  a  confederation ;  one  may  ask 
whether  it  does  not  correspond  rather  to  the  form  of 
state  known  as  a  federal  state  or  federation,  of  which 
the  United  States  constitutes  the  first  and  most  im- 
portant example. 

The  United  States.— The  Union  comprises  for- 
ty-eight states,  a  district,  two  territories  (Alaska  and 
Hawaii),  and  certain  insular  appanages  or  possessions. 
Soon  after  the  Declaration  of  Independence  the  Eng- 
lish colonies  of  North  America  constituted  themselves 
(1777)  into  a  confederation ;  but  when  all  danger  had 
disappeared,  the  inconvenience  of  this  method  of  as- 
sociation became  apparent,  and,  to  strengthen  the 
ties  of  the  Union,  the  people  adopted  the  form  of  a 


INTERNATIONAL    LAW  23 

federation,  by  the  Constitution  of  September  27, 1787, 
which  today  is  still  in  force. 

The  Federal  mechanism  in  its  essential  points, 
from  an  international  point  of  view,  comprises :  the 
President  of  the  Union,  chief  of  the  federal  executive 
power;  a  Congress  (the  legislative  organ),  compris- 
ing two  chambers :  the  Senate,  which  represents  the 
associated  states,  and  the  House  of  Representatives, 
which  represents  the  whole  of  the  people. 

From  an  outside  standpoint,  the  states  of  the 
Union  do  not  exist ;  it  is  the  federal  government  at 
Washington  which  represents  Ithe  Union  in  the  face 
of  the  world,  and  the  particular  states  are  no  longer 
persons  under  the  law  of  nations.  The  American 
system  presents,  from  the  viewpoint  of  International 
Law,  certain  features  which  would  appear  to  demand 
a  change.  While  our  international  relations  are  con- 
ducted entirely  by  the  Federal  Government,  and  the 
treaty  making  power  is  prescribed  by  the  constitu- 
tion, there  are  no  means  provided  therein  for  forcing* 
the  sovereign  states  of  the  Union  to  live  up  to  the 
treaties.  A  treaty  to  which  the  United  States  is  a 
party  is  a  law  of  the  land  and  the  laws  will  reach  the 
individual  who  violates  them.  With  the  states,  how- 
ever, it  is  different.  While  they  have  delegated 
to  the  central  power,  through  the  Constitution,  the 
right  to  make  treaties  by  which  the  Union  is  bound, 
they  have  failed  to  provide  for  a  method  through  which 
a  state  which  should  violate  a  treaty  might  be  brought 
to  book.  We  have  had  unfortunate  examples  of  this 
in  cases  where  foreign  rights  secured  by  treaty  have 
been,  or  are  claimed  to  have  been,  trampled  upon, 
and  the  state  in  which  the  wrong  was  done  has  re- 
fused to  afford  a  proper  remedy  or  even  to  heed  the  ad- 
vice and  remonstrance  of  the  Federal  Executive  which 
is  charged  with  the  execution  of  existing  treaties. 

The  same  objection  exists  also  in  the  case  of  those 


94    v  SECOND    LECTURE 

states  whose  colonial  possessions  are  very  extended 
and  rejoice  in  great  independence  as  regards  the 
mother  country,  without,  however,  having  an  inter- 
national existence.  (The  difficulty  between  France 
and  Great  Britain  in  regard  to  the  Newfoundland 
fisheries  is  an  illustration  of  this.) 

The  Swiss  Confederation.  —The  system  of  a 
federal  government  has  also  been  introduced  into 
Europe.  It  is  in  this  sense  that  the  political  evolution 
of  the  Swiss  cantons  took  place.  After  having  been 
a  confederation,  the  associations  of  the  Swiss  cantons 
took  on  the  character  of  a  federal  grouping.  The 
change  dates  from  September  12,  1848.  The  execu- 
tive power  is  confided  to  a  college  of  seven  members, 
called  the  Federal  Council.  There  is  a  legislative 
body  called  the  Federal  Assembly,  comprising  two 
chambers:  The  Council  of  States  which  represents 
the  cantons,  and  the  National  Council  which  repre- 
sents the  whole  of  the  people.  The  name  "Swiss 
Confederation' '  is  today  a  misnomer.  It  is  proper  to 
add  that  the  constitution  of  1874  recognizes  in  the 
different  Swiss  cantons  the  right  to  conclude,  indi- 
vidually, certain  treaties  concerning  matters  of 
police,  of  neighborly  understanding,  and  of  political 
economy.  Thus,  the  cantons  are  different  from  the 
states  of  the  American  federation,  in  that  they  have 
retained,  in  a  certain  measure,  their  quality  as  per- 
sons under  the  law  of  nations. 

International  Differences 

Causes  of  Differences -States,  like  individuals, 
may  have  occasion  to  differ  among  themselves. 

These  misunderstandings  may  have  different 
causes: 

(1)  An  attempt  made  against  the  honor  or  dig- 
nity of  a  state. 

(2)  The  violation  of  a  treaty. 


INTERNATIONAL    LAW  25 

(3)  Difficulties  arising  between  a  state  and  the 
subject  of  another  state,  or  between  subjects  of  differ- 
ent states. 

(4)  A  violation  of  territory  or  a  controversy  in 
regard  to  a  frontier. 

The  delimitation  of  the  Franco-Spanish  frontier, 
under  the  terms  of  the  treaty  of  Utrecht,  should  im- 
mediately have  been  proceeded  with.  This  was  in 
1659.  It  was  only  undertaken  in  1853  and  was  not 
finished  until  1868;  questions  of  detail,  however,  still 
present  themselves,  which  explains  the  continued  ex- 
istence of  the  Commission  of  the  Pyrennes.  This  is 
an  extreme  illustration  of  a  prolonged  international 
difference  which  has  never,  however,  passed  the 
bounds  of  diplomacy. 

The  United  States  has  had  many  boundary  dis- 
putes on  its  hands  of  which  the  most  recent  is  that 
of  the  Alaskan  border.  None  of  these  have  led  to 
armed  conflict,  unless  we  accept  the  Mexican  war  as 
indirectly  due  to  the  question  of  the  Texan  boundary. 

Two  more  examples  of  such  disputes  may  be 
given. 

A  difference  between  France  and  Brazil  in  regard 
to  the  limits  of  Guiana  very  nearly  arose  as  the  re- 
sult of  the  discovery  of  gold  mines  in  the  contested 
territory.    This  incident  was  settled  by  arbitration. 

An  actual  dispute  of  the  same  nature  between 
Peru  and  Ecuador  has  been  submitted  to  the  arbitra- 
tion of  the  King  of  Spain.  If  the  claims  of  Ecuador 
were  allowed  in  their  entirety,  Peru  would  lose  a 
dozen  large  states. 

The  Settlement  or  Consequences  of  International 
Differences 

International  disputes  may  have  different  conse- 
quences. We  may  cite  the  following  pacific  means 
for  determining  them. 


16  SECOND    LECTURE 

(1)  An  offer  of  direct  settlement,  or  direct  nego- 
tiations. 

(2)  Mixed  commissions. 

(3)  Good  offices. 

(4)  Mediation. 

(5)  Arbitration. 

Direct  Negotiations.  —Direct  negotiations  start 
with  semi-official  protests,  followed  by  official  ones, 
leading  to  verbal  discussions  between  the  agents  of 
the  two  governments.  An  understanding  is  thus  ar- 
rived at,  either  by  the  abandonment  by  one  of  the 
states  of  its  claims,  or  by  the  admission  of  the  right 
of  the  other  state;  sometimes,  also,  by  a  compromise. 
When  negotiations  give  no  immediate  results,  reser- 
vations are  noted  and  an  agreement  is  usually  arrived 
at  later.  If  the  question  concerns  matters  of  little 
importance  the  case  is  allowed  to  trail  along.  The 
negotiations  consist  in  dispatches  exchanged  at  long 
intervals,  until  a  day  arrives  upon  which  an  occasion 
presents  itself  which  will  permit  the  affair  to  be  ter- 
minated. 

In  1887  the  misunderstanding  between  France 
and  Germany  raised  by  the  Schnoebele  incident  was 
settled  by  the  method  of  direct  negotiation. 
Schnoebele  was  a  French  commissary  of  police.  From 
the  nature  of  his  functions  he  was  brought  into  re- 
lations with  one  of  his  German  colleagues.  The  lat- 
ter invited  him  to  an  interview  on  German  territory. 
Schnoebele  was  arrested  while  alleged  to  be  on  Ger- 
man territory  and  accused  of  high  treason.  In  addition 
to  the  fact  that  this  accusation,  brought  against  a 
non-German  subject,  seemed  untenable,  the  question 
was  raised  as  to  whether  the  arrest  had  taken  place 
on  French  or  German  territory.  Great  excitement 
was  aroused,  and  war  nearly  followed.  As  the  re- 
sult of  the  negotiations,  Schnoebe'le'  was  released. 
The  German  government  recognized  that  the  arrest 


INTERNATIONAL    LAW  27 

had  taken  place  as  the  result  of  an  invitation,  accepted 
by  Schnoebele,  who,  by  the  fact  of  such  invitation 
should  have  been  considered  as  bearing  a  safe-con- 
duct. 

By  the  above  means,  questions  based,  not  only 
on  rights  but  also  on  interests,  may  be  regulated. 
This  remark  has  great  weight  since  grave  difficul- 
ties which  may  lead  to  an  armed  conflict  are  often 
based  on  interests  and  not  on  matters  of  disagreement 
in  the  legal  sense  of  the  word. 

The  Anglo-France  arrangement  of  April  8, 1904, 
offers  an  important  example  of  a  settlement  by  the 
method  of  direct  negotiation.  The  French  rights  over 
a  part  of  the  coast  of  Newfoundland  date  from  1713. 
They  have  given  rise  to  many  discussions  and  to  num- 
erous disputes,  among  others  that  of  1891,  which  was 
submitted  to  an  arbitration  which  was  not  successful. 
No  doubt  had  arisen  as  to  the  validity  of  the  rights 
of  France  on  the  French  shore,  i.e.,  the  exclusive 
right  of  fishing  and  of  temporary  establishment. 
But  these  rights  had  become  annoying  beyond  all  ex- 
pression to  the  inhabitants  of  Newfoundland.  The 
servitude  placed  upon  this  coast  was  no  longer  the 
same  as  in  1713.  This  fact  had  to  be  recognized.  At 
the  earlier  period  the  coast  was  almost  entirely  de- 
serted, but  today,  the  island  population,  having  notice- 
ably increased,  shows  a  disposition  to  make  use  of 
all  the  territory.  England  was  wrong  in  not  calling 
the  attention  of  the  inhabitants  of  Newfoundland 
with  sufficient  energy  to  the  fact  that  they  should  re- 
spect international  engagements  entered  into  in  a 
perfectly  regular  manner.  Nevertheless,  in  such  a 
case  in  was  good  politics  for  France  to  be  satisfied 
with  a  compensation  in  lieu  of  a  positive  right. 

What  is  known  as  the  "Trent  affair* '  offers  a 
good  example  of  direct  negotations  to  which  the 
United  States  has  been  a  party.     In  1861   Captain 


28  SECOND    LECTURE 

Wilkes,  of  the  U.  S.  Navy,  boarded  a  neutral  British 
ship  and  removed  therefrom  two  emissaries  of  the 
Confederate  government  who  were  bound  to  Europe. 
By  direct  negotations  between  the  British  govern- 
ment and  that  of  the  United  States,  the  latter  gov- 
ernment was  shown  to  be  clearly  wrong  in  support- 
ing the  act  of  Captain  Wilkes;  it  gracefully  receded 
from  a  false  position  and  released  the  two  emissaries, 
thus  avoiding  a  threatened  outbreak  of  hostilities 
with  England. 

Constitution  of  Mixed  CoMMissiONS.-An  un- 
derstanding may  be  sought  by  means  of  mixed  com- 
missions, when,  for  example,  the  litigation  arises  from 
difficulties  having  a  technical  nature.  These  com- 
missions plan  a  solution,  and  search  for  a  common 
ground  of  understanding,  the  litigant  states  not  en- 
gaging themselves  to  accept  the  proposed  solution, 
though  they  may  do  so. 

As  an  example  of  recourse  to  a  mixed  commission, 
we  may  cite  what  quite  recently  occurred  in  regard  to 
the  territory  of  Alaska.  The  treaty  of  1825  between 
England  and  Russia  fixed,  in  a  very  confused  way  it 
must  be  said,  the  frontiers  of  what  was  then  called 
Russian  America.  This  confusion  had  at  the  time 
but  relative  small  importance,  as  Russian  America 
was  believed  to  be  buried  under  ice  and  snow  for 
nearly  eight  months  of  the  year.  In  1867  Russia  sold 
Russian  America  to  the  United  States;  Russian  Amer- 
ica then  became  Alaska.  The  territory  becoming  peo- 
pled as  the  result  of  the  discovery  of  numerous 
mines,  particularly  gold  mines,  it  became  important 
to  determine  exactly  the  line  of  demarcation  between 
Alaska  and  the  Dominion  of  Canada.  The  coast  was 
cut  up  by  numerous  fjords  and  it  was  impossible  to 
determine  where  the  boundary  met  the  sea.  The 
search  for  the  frontier  was  confided  therefore  to  a 
mixed  commission  composed  of  three  Americans,  two 


INTERNATIONAL    LAW  29 

Canadians  and  one  Englishman,  it  being  decided  that 
the  solution  which  should  have  a  majority  of  the  votes 
would  be  accepted.  The  examination  of  the  terrain 
and  the  discussions  lasted  a  long  time,  and  it  was  only 
in  October,  1903,  that  one  of  the  commissioners,  Lord 
Alverstone,  Lord  Chief  Justice  of  England,  formed  a 
majority  by  attaching  himself  to  the  delimitation  pro- 
posed by  the  American  commissioners,  and  by  hold- 
ing that  the  Canadian  commissioners  were  wrong. 

Good  Offices.  —When  a  solution  can  not  be  had 
by  the  above  means,  recourse  may  be  had  to  the  in- 
tervention of  a  third  party,  which  offers  its  good  offi- 
ces, or  which  has  been  asked  for  them.  It  is  thus 
that  we  have  seen  the  intervention  of  the  American 
Minister  at  Caracas,  arise  in  the  Venezuelan  incident 
of  1902.  In  that  case  Germany  and  England  com- 
plained to  Venezuela  of  the  outrages  to  which  their 
nationals  had  been  subjected  as  a  result  of  the  revo- 
lutionary condition  of  the  country.  Venezuela  re- 
ferred them  to  its  courts.  To  this  Germany  and 
England  objected,  knowing  as  they  did  the  nature  of 
the  courts.  Venezuela  refused  other  satisfaction  and 
the  two  aggrieved  nations  presented  an  ultimatum 
which  was  followed  by  bombardment,  a  blockade,  and 
the  sinking  of  certain  Venezuela  cruisers.  At  this 
Venezuela  gave  in,  and  the  matter  was  arranged, 
thanks  to  the  intervention  of  the  Minister  of  the 
United  States. 

Mediation.  —Recourse  may  also  be  had  to  media- 
tion. Here  it  is  a  third  power,  friendly  to  the  two 
powers  in  litigation,  which  intervenes.  Mediation 
may  have  for  its  purpose  either  to  prevent  a  war  or 
to  cause  its  cessation. 

Mediation  is  not  the  solution  of  a  difference,  but 
in  may  lead  to  a  solution.  The  mediator  does  not  set- 
tle the  question  but  serves  as  an  intermediary.  If  the 
mediator,  however,  chosen  by  a  common  accord,  has 


30  SECOND    LECTURE 

a  strong  personal  authority,  and  if  he  has  to  the  same 
degree  the  confidence  of  the  two  parties,  then  there  is 
every  reason  to  believe  that  his  counsels  will  be  heeded 
and  his  advice  followed.  It  is  for  this  reason  that 
mediation  is  sometimes  confounded  with  arbitration. 
Mediation  does  not  end  the  dispute.  It  is  necessary 
that  states  accept  for  themselves  the  reasons  urged 
and  the  suggestions  offered  by  the  mediator,  and  the 
solution  results  from  an  understanding  between  the 
parties  at  odds,  based  on  freely  accepted  conclusions. 

An  example  of  this  is  found  in  the  dispute  which 
arose  in  1885  between  Germany  and  Spain.  Germany 
had  occupied  one  of  the  Caroline  Islands,  looking  up- 
on it  as  having  been  freed  from  any  sovereignty. 
Spain  protested  and  declared  that  the  Caroline  Is- 
lands were  not  res  nullius,  being  held  under  Span- 
ish sovereignty.  The  relations  between  the  two  states 
were  soon  tense,  and  in  Spain  hostile  manifestations 
took  place  against  the  German  embassy.  Prince  Bis- 
mark  suggested  to  Spain  that  Pope  Leo  XIII  be  taken 
as  mediator.  The  suggestion  was  favorably  received. 
This  was  enough  to  indicate  that  the  moral  authority 
of  the  Pope  was  sufficiently  powerful  to  cause  his  sug- 
gestions to  be  accepted,  and,  in  fact,  the  two  powers 
signed  a  protocol  under  which  they  agreed  to  the 
views  suggested  by  him. 

From  a  legal  point  of  view  this  was  a  mediation, 
but  confusion  might  arise  and  it  was  possible  to  con- 
sider it  an  arbitration.  If  the  Pope  had  been  an  arbi- 
ter his  decisions  would  have  been  the  settled  solution. 
It  would  have  ended  the  litigation,  requiring  that  the 
parties  should  accept  it. 

In  some  countries  when  a  difficulty  arises  between 
individuals,  there  must  have  been,  prior  to  their  be- 
ing allowed  to  plead  before  a  tribunal  of  record,  an 
effort  made  to  reach  an  agreement  before  a  justice  of 
the  peace.    It  has  been  asked  whether  it  would  not 


INTERNATIONAL    LAW  31 

be  well  to  introduce  this  rule  into  international  rela- 
tions. 

At  The  Hague  Conference  mediation  was  recog- 
nized as  having  a  great  moral  value.  The  question 
of  making  it  obligatory  was  discussed;  but  the  prin- 
ciple was  not  accepted.  The  following  formula  was 
adopted:  *  'In  case  of  serious  disagreement  or  dispute, 
before  an  appeal  to  arms,  the  Contracting  Powers 
agree  to  have  recourse,  as  far  as  circumstances  allow, 
to  the  good  offices  or  mediation  of  one  or  more  friendly 

powers. f '    (Article  2,  Convention  for  the  Pacific  Settlement  of  Interna- 
tional Disputes.) 

One  of  the  articles  further  adds:  "Independently 
of  this  recourse,  the  Contracting  Powers  deem  it  ex- 
pedient and  desirable  that  one  or  more  Powers,  stran- 
gers to  the  dispute,  should,  on  their  own  initiative  and 
as  far  as  circumstances  may  allow,  offer  their  good 
offices  or  mediation  to  the  States  at  variance.  Pow- 
ers strangers  to  the  dispute  have  the  right  to  offer 
good  offices  or  mediation  even  during  the  course  of 

hostilities. ' '     (Article  3,  idem.) 

One  can  see  by  these  very  terms  that  the  disput- 
ing powers  are  free  to  have  recourse  to  mediation  or 
to  reject  good  offices,  since  these  powers  alone  can  de- 
termine whether  the  circumstances  lend  themselves 
to  the  first  or  permit  them  to  accept  the  latter. 

Besides,  a  power  might  feel  that  the  mediation, 
or  good  offices  of  another  power,  would  constitute  for 
the  first  power,  an  act  not  entirely  friendly.  Having 
this  fact  in  view,  The  Hague  Conference  declared 
that  "The  exercise  of  mediation  or  of  good  offices  can 
never  be  regarded  by  either  of  the  parties  in  dispute 
as  an  unfriendly  act."  (Article 3, idem.)  It  is  difficult, 
nevertheless,  to  prevent  one  of  the  parties  from  re- 
taining a  certain  resentment. 

Notwithstanding  the  work  and  the  expressed 
hopes  of  The  Hague  Conferences,  it  must  be  remarked 


32  SECOND    LECTURE 

that  in  the  conflict  between  England  and  the  Trans- 
vaal no  power  offered  its  good  offices  or  its  mediation 
—perhaps  because  the  Transvaal  was  not  counted 
among  the  signatory  powers. 

In  the  Russo-Japanese  war  it  was  only  towards 
the  end  of  the  conflict  that  a  power— the  United 
States,  so  located,  by  the  way,  as  to  make  its  condi- 
tion special,  and  having,  besides,  an  economic  inter- 
est at  stake— offered  its  mediation. 

Under  certain  international  engagements  media- 
tion is  obligatory.  The  treaty  of  Paris  of  March  30, 
1856,  in  Art.  VIII,  stipulates  that  in  case  of  litigation 
between  Turkey  and  one  of  the  signatory  powers,  ap- 
peal must  be  made  to  the  mediation  of  a  friendly  power 
before  recourse  can  be  had  to  arms.  Turkey  claims 
that  Russia,  in  1877,  did  not  respect  this  clause  of  the 
treaty,  but  the  claim  does  not  appear  well  founded. 
The  Treaty  of  Berlin,  of  February  26,  1885,  in  Art. 
XII,  requires  the  signatory  powers  to  resort  to  the 
mediation  of  one  or  more  friendly  powers  before  un- 
dertaking hostilities,  this  having  in  view  the  disputes 
which  might  arise  respecting  their  possessions  in  the 
Basin  of  the  Congo. 

Mediation  may  therefore  be  of  service  because  it 
is  easier  for  states  to  accept  advice  and  to  follow  it 
than  to  submit  to  a  verdict.  Besides,  mediation  opens 
up  a  much  broader  field  of  action  than  does  arbitra- 
tion, which  presupposes  a  litigation  in  the  judicial 
sense  of  the  word,  and  which,  in  consequence,  must 
be  determined  by  a  judge.  It  often  happens  that  in- 
terests alone  are  at  stake,  and  in  such  a  case  it  is  very 
difficult  to  conceive  of  a  judge,  properly  speaking. 
In  this  respect  the  Russo-Japanese  war  again  fur- 
nishes a  good  example.  It  became  necessary  to  de- 
termine whether  Russia  or  Japan  should  exercise  the 
preponderant  influence  in  Korea.  Each  of  the  former 
states  believed  that  in  order  to  maintain  a  political 


INTERNATIONAL    LAW  33 

equilibrium  its  interests  forbade  the  enjoyment  of  an 
influence  by  the  other.  A  mediator  might  have  pro- 
posed a  solution,  but  one  could  not  have  found  a  judge, 
since  there  was  no  rule  of  law  to  be  formulated  or  to 
be  determined. 

Arbitration.  —Arbitration,  differing  from  med- 
iation, is  a  pacific  solution  of  disputes.  International 
arbitration  differs  from  arbitration  between  individ- 
uals; when  a  difference  arises  between  two  individu- 
als, the  latter  leave  it  to  an  arbitrator  and  thus  substi- 
tute for  the  ordinary  jurisdiction  of  the  courts  a  juris- 
diction agreed  to  between  the  parties.  When  two 
states  agree  to  have  recourse  to  arbitration,  on  the 
contrary,  they  create  a  jurisdiction  where  none  before 
existed;  since,  properly  speaking,  there  could  not  ex- 
ist a  true  jurisdiction,  the  states  not  recognizing  a 
common  superior.  We  may  observe  also,  that  if,  in 
the  relations  between  individuals,  the  accepted  arbi- 
tration leads  to  a  solution  which  may  be  carried  into 
execution  as  a  matter  of  law,  is  not  the  same  in  in- 
ternational law  unless  the  parties  are  entirely  willing. 

When  two  states  in  litigation  wish  to  end  their 
differences  by  arbitration  an  agreement  must  first 
be  prepared,  which  has  for  its  object  to  determine 
exactly  the  question  to  be  adjusted,  in  legal  parlance 
to  frame  an  issue,  then  to  select  those  who  shall  pass 
upon  it,  and  to  fix  certain  rules  of  procedure. 

International  arbitration  is  very  old,  and  many 
examples  of  it  may  be  cited.  But  for  a  long  time  the 
arbitrator  was  chosen  from  among  the  sovereigns,  as 
arbitration  was  considered  a  political  or  diplomatic 
act,  and  the  actual  questions  under  examination  were 
more  or  less  secondary.  Afterwards  the  system 
changed,  due  to  the  fact  that  the  questions  submit- 
ted for  arbitration  had  grown  very  important,  and 
arbitration  came  to  be  considered  as  being  of  a  nature 


34  SECOND    LECTURE 

more  judicial  than  political.  A  true  tribunal  became 
instituted. 

This  evolution  was  reached  as  the  result  of  a 
celebrated  case  known  as  the  "Alabama  Case/' 
During  the  struggle  which  rent  the  American  Union 
from  1861-65,  the  Washington  government  believed 
that  it  had  a  right  of  complaint  against  England 
which  was  accused  of  not  having  observed  its  duties 
as  a  neutral,  by  allowing  ships  intended  for  the  Con- 
federates to  be  armed  and  equipped  in  its  ports. 
After  a  long  discussion  the  two  powers  agreed,  in  the 
Treaty  of  Washington  of  May  8,  1871,  to  refer  their 
dispute  to  a  tribunal  of  arbitration  composed  of  five 
arbitrators  chosen  from  Brazil,  Italy,  Switzerland, 
England  and  the  United  States.  This  tribunal,  organ- 
ized in  Geneva,  was  charged  with  the  investigation  of 
the  question  as  to  whether  the  responsibility  of  Great 
Britain  was  involved.  The  question  was  a  most  im- 
portant one,  and  a  verdict  of  many  millions  of  indem- 
nity was  possible,  if  it  were  admitted  that  indirect 
damages  should  be  taken  into  consideration.  There 
was  an  exchange  of  pleadings  as  would  be  the  case 
before  a  civil  tribunal,  and  many  arguments  were 
made;  finally,  a  verdict  was  reached,  calling  upon 
England  to  pay  an  indemnity  of  fifteen  and  a  half 
million  dollars.     England  paid  it. 

This  arbitration  made  a  tremendous  stir,  first, 
because  of  the  gravity  of  the  issue;  second,  because 
of  the  judicial  forms  observed.  As  a  result,  there 
have  since  been  many  important  cases  of  arbitration; 
among  the  most  important  we  may  name  the  conven- 
tions having  relation  to  the  Bering  Sea  fisheries  and 
to  the  delimitations  of  British  Guiana. 

But,  ought  one  to  wait  for  disputes  to  arise  be- 
fore having  recourse  to  arbitration  ?  or  may  one  fore- 
see them  and  arrange  in  advance  to  submit  to  arbi- 
tration cases  of  future  disagreement? 


INTERNATIONAL    LAW  35 

In  treaties  of  commerce  it  has  become  customary 
to  insert  a  clause  by  virtue  of  which  certain  difficulties 
are  to  be  regulated  by  arbitration.  Such  a  clause 
differs  from  an  agreement,  since  it  applies  to  future 
misunderstandings,  but  will  lead  to  an  agreement 
should  the  misunderstandings  arise.  Arbitration 
treaties  have  been  signed  where  the  arbitration  clause 
is  the  basis  of  the  treaty  and  not  simply  an  article 
thereof. 

Arbitration  thus  seemed  to  be  the  normal  way  to 
regulate  international  disputes,  and  many  sugges- 
tions were  offered  having  this  in  view,  but  the  situa- 
tion was  exaggerated,  not  all  disputes  could  be 
regulated  by  this  means.  Nevertheless,  so  serious  a 
general  movement  culminated  in  the  conference  of 
The  Hague  of  1899. 

The  conference  of  1899  suffered  much  in  its  repu- 
tation from  the  name  which  it  received  of  the  "Peace 
Conference,"  since  it  was  almost  immediately  fol- 
lowed by  the  terrible  South  African  war.  The  pur- 
pose of  the  conference  has  been  claimed  to  be 
disarmament;  this  was  not  so.  Never  was  there  a 
question  of  it.  The  messages^of  the  Czar  concerned 
only  the  limitation  of  armament,  and  it  was  soon  seen 
that  even  this  was  a  chimera.  A  committee  on  dis- 
armament, charged  with  a  study  of  the  report  to  be 
made  on  this  point,  reached  no  result. 

However  this  may  be,  at  The  Hague  Conference 
attention  was  directed  towards  the  organization  of 
arbitration.  An  effort  was  made  to  establish  arbitra- 
tion as  obligatory  prior  to  any  appeal  to  arms.  These 
propositions  were  not  accepted.  It  was  then  pro- 
posed to  limit  the  cases  which  should  be  submitted  to 
a  solution  by  arbitration,  and  several  such  cases  of 
small  importance  were  determined  upon,  but  this 
project  had  to  be  abandoned  on  account  of  the  opposi- 
tion of  Germany. 


36  SECOND    LECTURE 

Something,  however,  remains  of  the  work  of  the 
Conference,  these  are  the  regulations  on  arbitration, 
a  true  code  of  procedure;  and  today,  if  two  states 
have  agreed  to  settle  a  dispute  by  arbitration,  it  will 
be  sufficient  for  them  to  call  upon  the  permanent 
Court  of  The  Hague  created  in  1899. 

Is  it  to  be  understood  by  this  that  a  permanent 
court  of  arbitration  exists?  No,  the  court  does  not 
in  reality  exist.  It  is  provided  in  the  convention  that 
each  power  shall  designate  four  persons,  as  a  maxi- 
mum, all  to  be  of  recognized  erudition  in  international 
law,  of  high  moral  standing,  and  willing  to  accept  the 
functions  of  arbitrators  if  called  upon.  Such  is  the 
composition  of  the  court  of  arbitration  which  consists 
simply  of  a  list  of  about  seventy  persons;  so  properly 
speaking  the  court  does  not  sit  permanently.  It  is 
from  this  list  of  jurisconsults,  however,  that  the 
arbitrators  in  a  given  case  are  to  be  chosen.  In  general, 
each  power  chooses  two  and  the  four  arbitrators  thus 
selected  choose  the  fifth.  Often  there  will  be  but 
three;  this  will  be  the  actual  tribunal  of  arbitration. 
But  these  arbitrators  will  disappear  as  such  after  each 
case,  so  that  there  will  be  a  special  bench  for  each 
cause.  However,  there  does  exist  one  permanent 
thing,  and  that  is  a  clerks  office,  or  office  of  the  court, 
and  a  personnel  of  secretaries.  To  sum  up:  There 
exists  only  the  permanent  '  'cadre/ '  of  a  changeable 
tribunal. 

Up  to  the  present  time  the  court  has  been  con- 
vened four  times  for  questions  of  a  judicial  nature. 
One  of  the  last  occasions  was  on  the  22d  of  May, 
1905,  for  the  interpretation  of  the  treaties  of  com- 
merce between  France,  Germany  and  England  joined 
on  the  one  side,  and  Japan  on  the  other.  There  was 
an  arbitrator  for  each  party,  and  the  two  arbitrators 
chose  a  Norwegian  as  sur-arbitrator.  The  Europeans 
won  the  case. 


INTERNATIONAL    LAW  37 

In  the  convention  of  The  Hague,  1899,  (Art.  19), 
the  signatory  powers  reserved  the  right  to  conclude, 
in  the  future,  conventions  having  for  their  object  to 
make  arbitration  obligatory  in  certain  cases.  This  is 
a  right  which  of  course  has  always  existed  and  always 
exists;  but  the  reservation  remained  a  dead  letter 
until  France  and  England  passed  a  treaty  of  arbi- 
tration on  October  14,  1903.  In  that  treaty  it  was 
stipulated  that  differences  of  a  judicial  nature  which 
might  arise  between  the  government  of  the  French 
Republic  and  that  of  His  Majesty  the  King  of  Eng- 
land, and  which  might  not  have  been  solved  by  dip- 
lomatic methods,  should  be  submitted  to  the  permanent 
court  of  arbitration,  except  questions  affecting  the 
vital  interests,  the  honor  and  independence  of  either 
country.  It  follows  that  arbitration  is  obligatory  in 
the  unrestricted  cases. 

Conventions  of  this  nature  have  only  a  relative 
importance,  and  will  be  effective  only  if  the  good  will 
of  the  parties  which  exists  at  the  time  of  signing, 
continues  to  exist  up  to  the  moment  of  execution. 
If  the  good  will  persists  the  dispute  may  be  deter- 
mined without  a  preliminary  convention;  if  it  does 
not  persist,  arbitration  may  be  avoided  on  the  pre- 
text that  the  matter  at  issue  concerns  the  vital  inter- 
ests, the  honor,  or  the  independence  of  one  of  the 
countries.  Nevertheless,  the  Anglo-French  conven- 
tion has  met  with  some  success,  since  it  has  been  fol- 
lowed by  other  similar  conventions  with  Italy,  Spain, 
Switzerland  and  Denmark.  It  had  a  still  greater  suc- 
cess, when  it  was  imitated  in  a  treaty  concluded  be- 
tween Germany  and  England  in  1904. 

Finally,  in  1907,  took  place  the  Second  Hague 
Conference.  The  question  of  obligatory  arbitration 
was  naturally  brought  forward  again.  Of  forty-four 
states  represented,  thirty-two  were  in  favor  of  it. 
Germany,  however,  presented  a  categorical  refusal. 


38  SECOND    LECTURE 

An  effort  was  made  to  organize  a  true  court  of 
arbitration,  composed  of  judges  who,  though  techni- 
cally permanent,  would  sit  only  when  needed.  It 
was  impossible  to  reach  an  understanding  upon  the 
choice  of  these  judges.  The  smaller  nations  desired 
to  be  represented  on  the  principle  of  equal  represen- 
tation, but  all  agreed  that  it  would  be  impossible  to 
establish  a  bench  upon  which  more  than  seventeen 
judges  should  sit.  Failing  to  reach  an  understanding 
on  this  point  it  was  passed  over,  and  the  court  of  ar- 
bitration is  all  prepared  for,  excepting  the  organiza- 
tion of  the  bench. 

In  regard  to  maritime  matters,  there  was  better 
luck. 

An  international  prize  court  was  established  com- 
posed of  fifteen  judges,  and  if  an  understanding  was 
reached  it  was  because  the  small  nations  had  more 
interest  than  the  great  ones  in  the  creation  of  such  a 
court,  an  impartial  tribunal  charged  with  the  settle- 
ment of  questions  which,  up  to  that  time  had  de- 
pended on  the  competence  of  the  tribunals  of  the  par- 
ticular captor.  In  addition,  the  principle  of  equal- 
ity was  saved,  because  where  a  nation  is  a  party  to  a 
case  it  always  has  the  right  to  claim  the  presence  of 
one  of  its  own  nationals  on  the  prize  court. 

Thus  the  conference  succeeded  in  creating  the 
first  international  judicial  organization,  from  which 
we  have  the  right  to  expect  the  happiest  results. 
The  United  States  is  not  a  party  to  this  convention, 
at  least  in  the  sense  that  it  has  not  been  proclaimed 
by  the  President,  although  as  modified,  it  has  re- 
ceived the  approval  of  the  Senate.  The  general 
question  of  maritime  prize  courts  can  have  but  an  in- 
ferior interest  for  us  and  it  will  be  sufficient  for  our 
purpose  to  say  that  The  Hague  Convention  contains 
some  rather  vague  directions  as  to  the  procedure 
which  is  to  guide  the  court.    Thus,  "if  no  generally 


INTERNATIONAL    LAW  39 

recognized  rule  exists,  the  court  shall  give  judgment 
in  accordance  with  the  principles  of  justice  and 
equity.' '  Of  such  broad  language  some  of  the  states 
fought  shy.  England,  as  has  been  already  stated, 
called  a  convention  at  London  in  1908,  for  the  pur- 
pose of  formulating  a  precise  set  of  rules  which  would 
meet  the  case.  The  convention  which  ended  with 
what  is  known  as  "The  Declaration  of  London  "  Feb- 
ruary 26,  1909,  offers  the  following  preliminary  pro- 
vision: "The  Signatory  Powers  are  agreed  that  the 
rules  contained  in  the  following  chapters  correspond 
in  substance  with  the  generally  recognized  principles 
of  international  law." 

The  chapters  mentioned  contain  quite  full  rules 
in  regard  to  blockade,  contraband,  unneutral  ser- 
vice, destruction  of  neutral  prizes,  transfer  to  a  neu- 
tral flag,  enemy  character,  resistance  to  search,  con- 
voy and  compensation. 

The  original  convention  was  so  framed  as  to  pre- 
sent, in  the  opinion  of  some  American  lawyers,  a  fea- 
ture which  under  the  constitution  could  not  be  ac- 
cepted by  the  United  States.  This  was  the  provision 
which  involved  an  appeal  from  the  Supreme  Court  of 
the  United  States  to  the  Permanent  Prize  Court.  A 
modification  of  the  feature  was  suggested  at  the 
London  meeting,  and  all  the  signers  of  the  original 
convention  have  accepted  the  change. 

I  am  at  present  unable  to  name  the  powers  which 
have  ratified  either  the  Prize  Court  Convention  or 
the  Declaration  of  London.  For  those  who  ratify  the 
latter  there  would  appear  to  be  no  further  reason  for 
abstaining  from  a  ratification  of  the  former. 

The  Convention  of  The  Hague  of  1899  laid  the 
ground  for  another  institution  of  great  importance; 
in  its  9th  article  it  instituted  an  international  com- 
mission of  inquiry.  This  had  for  its  purpose  to  facil- 
itate the  determination  of  disputes  which  concern 


40  SECOND    LECTURE 

neither  the  honor  nor  the  essential  interests  of  a  state, 
but  arise  from  a  difference  of  understanding  on 
questions  of  fact.  The  report  of  this  commision, 
which  is  limited  to  a  determination  of  facts,  has  in  no 
wise  the  character  of  a  verdict  of  arbitration. 

A  serious  case  brought  into  relief  the  importance 
of  this  institution;  this  was  the  Hull  incident  which 
occurred  in  October,  1904.  Vessels  of  a  Russian 
squadron  had  fired  upon  English  fishing  boats.  Stren- 
uous complaints  frjpitaj  England.  War  was  on  the 
point  of  breaking  out; .-but  it  was  found  possible  to 
calm  the  two  powers,  and  they  reached  the  point  of 
naming  a  commission  of  inquiry.  It  should  be  re- 
marked that  there  was  in  this  case  an  extension  of 
the  terms  of  the  convention  of  1899,  because  Russia 
was  compromised  by  the  responsibility  which  fell  up- 
on it,  and  vital  interests  came  into  play.  The  com- 
mission, composed  of  five  members,  satin  Paris  under 
the  presidency  of  Admiral  Fournier.  The  solution 
which  it  proposed  was  accepted  by  the  two  govern- 
ments, and  Russia  paid  an  indemnity  to  the  fishermen; 
war  was  averted. 


THIRD  LECTURE 


Violent  Results  of  International  Disputes 

DIFFERENCES  between  states  may  not  be  set- 
tled amicably,  and  the  resulting  dissatisfaction 
may  manifest  itself  under  various  forms.  A  dispute 
may  have  a  particularly  violent  result — war.  But 
there  may  be  means  of  coercion  which  do  not  go  quite 
as  far  as  war.    Such  are  reprisals. 

Reprisals.  —Reprisals  are  acts  of  violence.  They 
contemplate  acts  contrary  to  law,  made  use  of 
against  a  state  as  a  means  of  constraint,  with  a  view 
to  obtaining  satisfaction.  There  may  be  confusion 
in  regard  to  this  subject.  Example:  Two  states  not 
joined  by  a  treaty  of  commerce  fail  to  understand 
one  another  with  regard  to  the  reciprocal  rights  of 
certain  transactions.  If  one  of  these  powers  imposes 
high  duties  upon  products  imported  by  the  other,  and 
the  latter  responds  by  an  analogous  measure,  it  is  said 
that  there  have  been  custom  house  reprisals.  This 
expression  is  an  improper  one,  since  either  of  the 
states  may  raise  its  tariff;  it  is  perhaps,  an  impolitic 
act  and  one  lacking  in  courtesy,  but  it  is  a  right;  if 
there  be  no  treaty  of  commerce  any  state  is  free  to 
regulate  at  will  its  commercial  relations  with  another 
state,  and  in  doing  so  it  is  only  making  use  of  its 
right,  which  is  that  of  retorsion. 

Reprisals  are  exercised  only  by  a  state.  In  other 
days  they  might  be  exercised  by  individuals  with  the 
authority  of  their  own  government.  They  are  di- 
rected against  an  opposing  state  or  sometimes  against 
individuals  of  that  state.  In  the  latter  case  it  is  man- 
ifestly unjust  to  strike  at  a  subject  of  a  state  in 
order  to  punish  the  state  itself;  but  it  is  a  means  of 

41 


42  THIRD     LECTURE 

exercising  pressure  on  the  government.  Reprisals 
are  used  only  between  states  of  unequal  strength, 
since  if  the  states  were  upon  an  equal  footing  the 
first  act  of  violence  of  the  one  would  be  followed  by 
an  act  of  violence  on  the  part  of  the  other,  and  there 
would  be  war.  Reprisals  may  be  made  use  of  either 
in  time  of  peace  or  war.  In  these  lectures  we  will 
concern  ourselves  only  with  reprisals  in  time  of  peace. 
The  means  employed  in  executing  reprisals  differ 
greatly.  One  method  to  be  recommended,  consists  in 
striking  at  a  government  alone.  This  is  the  method 
which  was  used  by  France  in  relation  to  Turkey,  when 
the  French  fleet  seized  the  Turkish  custom  house  at 
Mytilene. 

Maritime  states  sometimes  use  the  embargo,  that 
is  to  say,  the  seizure  of  vessels  of  the  offending  state 
found  in  the  ports  of  the  offended  power  or  even  at 
sea  within  its  territorial  waters. 

Another  means— a  less  strenuous  one— is  that  of 
the  peaceful  blockade.  This  consists  in  blockading  a 
port  without  other  warlike  operations.  In  this  way 
one  strikes  at  the  commerce  of  the  port;  but  one 
strikes  at  the  same  time  at  the  commerce  of  third 
powers.  This  was  the  method  employed  in  1902  by 
England  and  Germany  against  Venezuela. 

Sometimes  recourse  is  had  to  more  energetic  acts. 
In  1884  French  reprisals  against  China  went  so  far 
as  the  bombardment  and  destruction  of  the  arsenal 
of  Fouchow. 

Some  reprisals  consist  in  extremely  violent  meas- 
ures, and  one  may  well  ask  in  what  respect  they  dif- 
fer from  war.  The  difference  consists,  first,  in  re- 
gard to  the  status  of  the  parties,  who  are  not  at  war. 
Reprisals  allow  treaties  to  remain  active;  war  does 
not.  There  is  a  distinct  difference  in  so  far  as  regards 
third  powers,  in  the  sense  that  there  is  no  require- 
ment of  neutrality  as  in  case  of  war.    Within  all  pos- 


INTERNATIONAL    LAW  43 

sible  limits,  the  effects  of  reprisals  are  restricted  to 
the  two  states  in  dispute,  and  this  carries  with  it, 
for  the  state  which  makes  use  of  reprisals,  conse- 
quences which  may  be  either  advantageous  or  disad- 
vantageous. Thus,  in  the  French  dispute  with  China 
in  1884-85,  France  claimed  that  it  was  not  at  war. 
The  advantage  was  that  its  diplomatic  relations  with 
China  continued,  and  as  there  was,  properly  speaking, 
no  neutrality,  the  French  vessels  were  at  perfect  lib- 
erty to  coal,  particularly  in  the  harbor  of  Hong  Kong. 
Moreover,  and  still  more  to  the  point,  there  was  an 
advantage  to  the  French  in  relation  to  home  politics, 
as  the  use  of  the  word  "war"  would  have  been  unfor- 
tunate for  the  deputies  who  were  supporting  the  gov- 
ernment. But  there  was  also  a  disadvantageous  side. 
The  subjects  of  third  powers  might  carry  to  China 
arms  and  food.  France  had  not  the  right  to  visit  their 
ships  at  sea.  England  changed  the  situation  by  de- 
ciding to  apply  the  rules  of  neutrality— then,  no  more 
coal.  As  a  result  of  that  action  the  French  suffered 
the  inconvenience  of  war  with  none  of  its  advantages. 
They  then  considered  themselves  at  war,  declared  rice 
contraband  and  exercised  the  right  of  search. 

Violent  measures  employed  under  the  name  of 
reprisals  certainly  resemble  war.  In  1900  it  was 
learned  in  Europe  that  grave  events  were  occurring 
in  China,  that  the  foreign  legations  in  Pekin  were 
threatened,  and  it  was  decided  to  send  troops  there. 
Germany  was  regarded  as  having  the  greatest  inter- 
est in  the  situation,  not  because  of  her  commercial 
interests  in  the  Orient,  but  because  her  ambasssdor 
had  been  assassinated.  The  expedition  was  placed 
under  the  orders  of  the  German  General  Von  Walder- 
see. 

There  was  an  expedition,  and  there  was  fighting 
during  the  march  of  the  expeditionery  corps  to  Pekin, 
but  there  never  was  war.    Thus,  the  diplomatic  agents 


44  THIRD    LECTURE 

did  not  have  to  quit  their  posts.  Then,  when  the  le- 
gations were  freed,  China  was  informed  of  the  terms 
upon  which  its  territory  would  be  vacated.  The  ef- 
fect of  having  it  supposed  that  there  was  a  treaty  of 
peace  was  thus  avoided.  As  a  result,  words  were 
carefully  chosen;  no  allusion  was  made  to  earlier  trea- 
ties, and  it  was  by  a  procotol  in  1901  that  the  accord 
with  China  was  established. 

Recently,  atCasa  Blanca  and  also  at  Oudjida,  the 
French  have  been  without  doubt  committing  acts  of 
warfare,  and  yet  France  is  not  at  war  with  Morocco, 
to  whom  it  is  actually  lending  money. 

War. —War  must  be  looked  upon  as  a  condition 
of  fact  which  consists  in  acts  of  violence  having  for 
their  purpose  as  a  whole  to  constrain  a  vanquished 
adversary  to  accept  the  will  of  the  victor.  We  must 
omit  from  the  definition  of  war  any  idea  of  right,  but 
obviously  we  must  understand  that  a  war  should  not 
be  waged  unjustly.  If  one  belligerent  might  lay 
claim  to  special  rights  because  its  cause  is  just,  it  is 
hard  to  see  what  rules  could  apply,  for  the  reason 
that  every  belligerent  claims  to  be  in  the  right. 

That  which  constitutes  the  gravity  of  war  is  that 
it  places  at  issue  the  existence  of  the  contending 
states.  It  almost  always  happens  that  the  result  is 
quite  different  from  a  mere  solution  of  the  dispute, 
and  that  the  original  dispute  is  lost  sight  of  at  the 
conclusion  of  the  war.  Thus,  in  1870  war  arose  as 
the  result  of  the  pretentions  of  the  French  govern- 
ment, which  demanded  a  definite  renouncement  of 
the  candidacy  of  the  Hohenzollerns  to  the  crown  of 
Spain.  The  solution  was  the  taking  of  Alsace-Lor- 
raine by  Germany,  and  the  question  of  a  German 
pretender  to  the  throne  of  Spain  was  lost  sight  of. 

In  the  war  of  1898  between  Spain  and  the  United 
States,  the  United  States  had  complained  of  the  blow- 
ing up  of  the  battleship  '  'Maine' '  in  Havana  harbor 


INTERNATIONAL    LAW  45 

as  a  result  of  the  malevolence  of  the  Spaniards;  be- 
sides, the  United  States  desired  the  independence 
of  Cuba.  As  a  result  we  find  the  relative  independ- 
ence of  Cuba,  but  beyond  this  the  United  States 
caused  to  be  ceded  to  it  Porto  Rico  and  the  Philip- 
pines. This  illustration,  offered  by  Prof.  Renault, 
does  not  appear  to  be  as  apt  as  is  the  one  concerning 
the  Franco-German  war;  the  true  difference  between 
the  United  States  and  Spain  was  due  to  the  general 
condition  of  things  in  Cuba  and  the  loss  of  the 
"Maine"  was  but  an  aggravating  incident. 

The  Russo-Japanese  war  furnishes  a  rare  example 
of  a  war  in  which  the  purpose  of  the  dispute  was  at- 
tained by  the  conquerer.  The  war  was  dictated  by 
the  competition  between  the  two  powers  in  regard  to 
the  influence  to  be  exercised  over  Korea  and  by  the 
presence  of  Russian  troops  in  Manchuria.  In  the  re- 
sult, Russia  recognized  the  rights  of  Japan  over  Korea, 
renounced  portions  of  Chinese  territory  which  had 
been  leased  to  it  and  vacated  the  Chinese  province  of 
Manchuria;  there  was  but  one  point  outside  the  cause 
of  dispute,  and  that  was  the  cession  of  a  part  of  the 
island  of  Sakalien  by  Russia. 

The  dangerous  effect  of  a  war,  therefore,  is  that 
the  object  of  the  dispute  does  not  govern  the  solu- 
tion. What  we  must  accept  as  true  is,  that  war  is 
not  the  solution  of  a  difference,  but  that  it  may  lead 
to  a  solution.  War  has  for  its  purpose  to  determine 
which  of  the  contestants  is  strong  enough  to  impose 
his  will. 

The  purpose  of  war  being  to  permit  a  belligerent 
to  impose  his  will,  we  may  exclude  all  means  which 
are  not  required  to  attain  this  end.  We  may  not  con- 
sider as  proper,  acts  of  cruelty,  etc. ,  since  one  may 
not  do  harm  for  the  sake  of  harm,  but  only  to  reach 
an  end. 


48  THIRD    LECTURE 

states;  such  contact  may  lead  to  difficulties.  Again, 
the  war  vessels  of  the  belligerents  may  enter  neutral 
ports,  and  this  presents  a  source  of  difficulty,  particu- 
larly in  regard  to  revictualing. 

War,  properly  so-called,  and  Civil  War.— 
When  a  struggle  within  the  confines  of  a  state  assumes 
certain  proportions,  it  may  be  a  question  whether  it  is 
or  is  not,  an  occasion  to  apply  to  the  belligerents  the 
procedure  of  war,  properly  so-called— that  is  to  say, 
whether  those  in  revolt  should  be  called  rebels  or  rec- 
ognized as  belligerents.  The  Cubans  who  were  strug- 
gling against  Spain  were  [never  recognized  as  bellig- 
erents even  by  the  United  States.  The  Confeder- 
ates during  our  Civil  War,  on  the  contrary,  were 
recognized  as  belligerents  by  England  and  France. 
There  is  a  marked  difference  in  the  status  of  those  in 
rebellion  in  the  sense  that,  the  war  ended,  the  legal 
government  being  the  victor,  may  punish  insurgents 
or  rebels  for  the  infraction  of  laws  which  they  should 
have  respected  and  which  they  violated;  whereas,  if 
they  are  true  belligerents,  there  is  no  punishment  for 
vanquished  enemies  following  a  war.  Often  at  the 
end  of  a  civil  war  an  amnesty  is  proclaimed;  this  means 
that  the  past  is  forgotten,  but  it  seems  to  affirm  a 
right  of  punishment  of  which  advantage  is  not  taken. 
In  a  civil  war  there  is  great  interest  for  third  parties 
in  knowing  whether  the  contending  factions  are  bel- 
ligerents. In  the  case  of  war  at  sea,  the  acts  of  the 
party  which  is  not  recognized  as  a  belligerent  would 
be  acts  of  piracy. 

Who  Has  the  Right  to  Make  War 

This  question  presents  itself  under  a  two-fold 
aspect: 

1.  From  the  standpoint  of  international  law. 

2.  From  a  constitutional  standpoint. 

In  principle,  every  sovereign  state  has  the  right 


INTERNATIONAL    LAW  40 

to  make  war,  since  that  is  the  sole  method  of  enforc- 
ing what  the  nation  considers  its  rights. 

Not  all  states,  however,  are  full  sovereign  states. 

There  are  neutralized  states.  Such  is  the  case  of 
Switzerland  since  1815;  of  Belgium  since  1831,  and  of 
the  Grand  Duchy  of  Luxemburg  since  1867. 

From  the  fact  of  their  neutrality,  and  of  the  rec- 
ognition of  this  status  by  the  great  powers,  these 
states  have  not  the  right  to  make  war  or  to  enter 
into  engagements  (a  treaty  of  alliance,  for  example) 
which  might  lead  them  into  war.  However,  if,  as  the 
result  of  certain  circumstances,  they  do  engage  in 
war,  they  will  have  to  appeal  to  the  powers  which 
guarantee  to  them  the  right  of  neutrality. 

Besides  these  neutralized  states  deprived  of  the 
right  of  making  war,  there  are  states  which  are  said  to 
be  protected  or  vassal,  dependent  upon  another  state, 
called  the  protector  or  suzerain.  These  may  not  make 
war,  but  they  may  be  dragged  into  it  by  the  sovereign 
state;  no  more  may  war  be  made  against  them;  any 
complaints  against  such  vassal  states  must  be  settled 
with  the  suzerain.    Such  is  the  theory. 

Under  this  theory  various  claims  have,  however, 
been  advanced. 

Thus,  in  1881,  at  the  time  of  the  differences  be- 
tween France  and  Tunis,  Turkey  thought  that  it 
should  assert  its  right  of  suzerainty.  This  right 
was  thrust  aside  by  France,  which  based  its  action 
on  certain  earlier  cases  when  Tunis  had  found  itself 
in  a  state  of  war  and  Turkey  had  not  intervened. 

The  same  claim  was  put  forth  by  China  at  the 
time  of  the  French  difference  with  Annam.  France 
questioned  the  vassal  condition  of  Annam,  and  con- 
sidering it  as  an  independent  state,  made  war  against 
it  without  bothering  itself  about  China. 

At  the  time  of  the  war  declared  in  1885  by  Servia 
against  Bulgaria,  a  Turkish  vassal,  the  Prince  of  Bui- 


60  THIRD    LECTURE 

garia  called  upon  his  suzerain,  but  at  the  same  time 
placed  himself  on  the  defensive  without  awaiting  the 
answer  of  the  Sultan.  The  fate  of  arms  was  favor- 
able to  Bulgaria,  which  but  for  the  intervention  of 
Austria,  would  have  occupied  Servia. 

From  a  constitutional  point  of  view,  no  general 
rule  may  be  laid  down  as  to  who,  in  a  state,  may  de- 
cide if  war  shall  be  made  or  not.  But  a  distinction 
must  be  made  between  that  decision  and  a  declara- 
tion of  war.  A  declaration  of  war  is  a  notification  of 
the  intention  to  make  war.  This  notification  may  be 
made  only  by  the  executive  power,  which  alone  is 
qualified  to  correspond  with  other  states. 

But  if  it  appears  that  the  executive  power  has 
the  sole  right  to  declare  war,  has  it  the  right  to  de- 
cide upon  it?  This  depends  upon  the  constitutions  of 
the  several  states. 

Under  our  constitution  (Art.  1,  Sec.  8,  Clause  11) 
Congress  alone  has  the  power  to  "declare  war." 
This  must  be  accepted  as  meaning  that  Congress  must 
determine  whether  war  shall  be  declared  since  the  for- 
mal notice  to  the  nation  against  which  war  is  to  be 
waged,  and  the  notice  due  to  the  world  at  large  of  the 
institution  of  hostilities,  must  be  made  by  the  Execu- 
tive as  the  latter  alone  is  in  a  position  to  communi- 
cate with  the  foreign  powers.  We  might  put  it  other- 
wise and  say  that  Congress  determines  upon  a  war 
and  the  Executive  proclaims  the  determination.  From 
the  standpoint  of  International  Law  the  term  '  'De- 
claration of  War"  is  held,  as  I  have  stated,  to  mean  a 
notice  that  war  is  to  be  made.  It  is  possible  for  the 
United  States  to  become  involved,  however,  in  a  war 
without  the  direct  action  of  Congress,  since  the  latter 
has  placed  on  the  statute  books  a  provision  of  law 
authorizing  the  President  to  repel  invasion  with  the 
aid  of  troops  which  he  may  directly  summon.  It 
might  follow  therefore,  that  by  exercising  the  au- 


INTERNATIONAL    LAW  51 

thority  thus  given,  the  President,  of  his  own  motion, 
could  virtually  establish  a  state  of  war  with  a  for- 
eign power. 

In  England  the  sovereign  decides  as  to  war,  on 
the  proposal  of  the  cabinet,  which  represents  the  will 
of  Parliament. 

In  France  today,  in  accordance  with  law,  the 
President  of  the  Republic  may  only  declare  war,  with 
the  assent  of  the  two  chambers.  It  is  not  laid  down 
under  what  form  this  assent  shall  be  shown.  It  will 
be  most  often  in  the  form  of  credits  appropriated,  in 
an  unequivocal  way.  Under  the  German  system,  the 
emperor  declares  war  with  the  assent  of  Bundesrath. 

The  theory  has  obtained  that  an  assemblage  rep- 
resenting the  people  will  be  more  conservative  in 
regard  to  a  declaration  of  war,  than  would  be  the  in- 
dividual Executive  of  a  nation,  and  from  this  theory 
has  sprung  the  fact  that  in  practically  all  modern 
constitutions  there  is  a  requirement  that  the  people 
as  represented  must  give  consent  to  proposed  hos- 
tilities. This  theory  would  appear,  however,  to  be  a 
fallacy,  for  experience  would  seem  to  show  that  pop- 
ular clamor  is  less  likely  to  attain  conservative  re- 
sults than  is  the  calmer  judgment  of  an  Executive 
who  has  a  clearer  view  of  the  general  situation  and 
who  understands  the  responsibilities  which  a  war 
may  entail. 

How  Should  a  War  be  Opened? 

This  is  the  old,  old  question  in  regard  to  a  decla- 
ration of  war. 

For  a  long  time  the  declaration  was  clothed  with 
solemn  formality.  Thus,  under  the  Romans,  a  decla- 
ration of  war  was  preceded  by  solemn  rites;  any  war 
in  which  these  preliminary  rites  had  not  been  fulfilled 
was  declared  an  unjust  war.  In  the  middle  ages, 
under  the  influence  of  chivalry,  the  intention  to  have 


52  THIRD    LECTURE 

recourse  to  hostilities  was  made  known  through  the 
heralds. 

But  we  can  conceive  of  a  notification  of  intention 
to  make  war  being  issued  by  a  diplomatic  agent  ac- 
credited to  the  power  in  interest. 

The  question  of  whether  there  is  any  obligation 
to  notify  an  opponent  of  the  intention  to  make  war 
before  commencing  hostilities  has  been  very  much 
discussed. 

Various  forms  may  be  adopted.  In  the  course  of 
negotiations  one  power  may  notify  another  of  its  final 
wishes  by  sending  an  ultimatum  in  which  it  is  de- 
clared that  if  satisfaction  be  not  given  by  a  stated 
time,  or  that  if  the  answer  be  not  favorable,  the  first 
power  will  have  recourse  to  force  to  obtain  satisfac- 
tion. In  this  case  the  declaration  of  war  is  clothed 
with  a  conditional  form,  since  it  is  subordinated  to 
the  non-acceptance  of  the  condition  of  the  ultimatum. 
There  is,  therefore,  no  surprise.  The  situation  is 
clear  cut,  since  the  adversary  knows  that  an  unfavor- 
able reply,  will  carry  with  it  hostilities.  There  has 
been  much  discussion  in  regard  to  all  this,  and  there 
would  appear  to  have  been  as  many  cases  of  a  de- 
claration of  war  by  ultimatum  as  by  any  other  form. 

The  war  of  1870  commenced  as  the  result  of  a 
declaration  made  in  Berlin  by  the  French  diplomatic 
agent.  The  Boers  declared  war  against  England  by 
an  ultimatum. 

It  is  certain  that  if  one  take  the  military  view 
one  must  desire  that  there  be  no  requirement  of  a 
declaration,  in  order  that  one  may  act  without  losing 
time  and  thus  be  the  first  to  take  the  offensive.  But 
when  one  considers  the  pacific  relations  which  must 
be  the  normal  relations  between  states,  it  is  of  course 
rare  that  hostilities  begin  in  an  unexpected  manner. 

However,  at  the  beginning  of  the  Seven  Years' 
War  an  English  squadron,  at  a  time  when  there  was 


INTERNATIONAL    LAW  53 

still  only  tension  in  the  relations  of  England  and 
France,  sailed  with  secret  orders  which  were  to  be 
opened  at  sea.  These  orders,  which  were  put  into 
effect,  directed  that  the  squadron  seize  French  com- 
mercial vessels.  It  is  undoubtedly  because  the  Eng- 
lish expect  that  recourse  may  be  had  to  an  analogous 
method  in  regard  to  them,  that  they  have  always  op- 
posed the  opening  of  a  tunnel  under  the  British  chan- 
nel ;  clearly,  if  it  were  certain  that  hostilities  might 
not  take  place  before  a  preliminary  warning  thereof, 
the  question  of  piercing  a  tunnel  would  present  no 
danger,  since  it  could  be  readily  destroyed  in  time 
and  thus  shield  England  from  any  danger  of  invasion. 

At  the  second  conference  of  The  Hague,  in  1907, 
the  French  delegation  caused  to  be  adopted,  without 
difficulty,  the  following  proposition  : 

"The  Contracting  Powers  recognize  that  hostili- 
ties between  themselves  must  not  commence  without 
previous  and  explicit  warning,  in  the  form  either  of 
a  reasonable  declaration  of  war  or  of  an  ultimatum 
with  conditional  declaration  of  war."    (Art.  1,  The  Hague 

Conv.  relative  to  the  opening  of  hostilities.    Oonv.  No.  8.) 

It  is  a  good  thing,  undoubtedly,  for  public  opin- 
ion, that  the  causes  which  are  of  a  nature  to  bring  on 
a  conflict  be  shown. 

But  the  proposition  is  incomplete  in  the  sense 
that  it  speaks  of  a  preliminary  notice.  What  is  to  be 
understood  by  this  notice?  Logically  a  determined 
period  of  delay  should  have  been  fixed  between  the 
notice  and  the  commencement  of  hostilities.  This, 
by  the  way,  is  what  was  asked  for  with  great  insist- 
ence by  the  Dutch  delegation  and  particularly  by  the 
Russian  delegation.  It  is  clear  that  if  one  could 
agree  to  establish  a  real  delay  of  eight  days,  for  in- 
stance, it  would  be  a  great  relief  to  all  European 
countries,  because  they  would  not  be  required  to  have 
a  strong  contingent  of  men  continually  under  arms 


64  THIRD    LECTURE 

to  answer  an  attack  which  may  be  unexpected.  Peace, 
therefore,  would  need  to  be  less  well  armed. 

The  French  delegation,  holding  to  the  agreement 
already  reached,  rejected  the  question  of  fixing  a  pe- 
riod of  delay  since,  theoretically,  it  had  doubts  as  to 
what  the  effect  of  this  delay  would  be  on  the  navy. 
For  land  troops  one  might  fix  such  a  period;  but 
what  would  become  of  the  naval  movements  ?  Could 
the  warships  of  one  of  the  belligerents  place  them- 
selves in  a  position  to  seize  a  point  or  block  a  port, 
when  the  object  of  their  mission  would  be  known  ? 
Such  ships,  however,  could  not  be  required  to  remain 
stationary.  The  adversary  might  further  choose  his 
moment  and  profit  by  the  fact  that  the  squadrons  of 
the  fleet  were  occupying  distant  stations.  One  can 
see  that,  even  with  the  best  of  good  will,  this  question 
of  delay  is  an  extremely  delicate  one  to  regulate. 

Another  proof  of  this  difficulty  is  that,  in  a  dis- 
cussion of  this  question  by  the  Institute  of  Interna- 
tional Law  in  September,  1906,  at  a  meeting  held  at 
Ghent  where  the  savants  were  held  to  a  less  reserve 
than  would  be  the  case  with  governments,  the  ma- 
jority did  not  consider  it  wise  to  determine  upon  a 
period  of  delay. 

To  sum  up,  therefore,  it  is  a  question  of  good 
faith,  and  we  shall  see  in  the  future  whether  a  noti- 
fication has  been  made  with  a  sufficient  subsequent 
delay. 

When  hostilities  broke  out  between  Japan  and 
Russia,  the  press  of  different  countries  spoke  rather 
carelessly,  it  would  seem,  of  Japanese  perfidy.  If 
we  examine  all  that  then  occurred,  we  must  recog- 
nize that  on  the  6th  of  February,  1904,  the  Japanese 
minister  at  St.  Petersburg  presented  two  notes;  in 
the  first,  Japan  brought  to  the  notice  of  Russia  the 
rupture  of  diplomatic  relations.  This  rupture  did  not 
necessarily  carry  with  it  recourse  to  war,  but  the  sec- 


INTERNATIONAL    LAW  66 

ond  note  gave  notice  that  Japan  would  seek  other 
means,  which  might  well  have  been  considered  in  the 
light  of  a  declaration  of  war.  It  is  not  right,  there- 
fore, to  speak  of  perfidy,  the  more  so  since  there  was 
then  no  obligation,  under  international  law,  to  pro- 
ceed by  means  of  preliminary  notice.  Forty-eight 
hours  later  Japanese  torpedo  boats  penetrated  the 
bay  of  Port  Arthur  and  tried  to  torpedo  Russian  bat- 
tleships. It  would  seem,  under  the  circumstances, 
that  the  vigilance  of  Russia  was  alone  to  be  ques- 
tioned, since,  in  view  of  the  strained  relations,  notice 
by  telegraph  might  have  been  given  to  the  command- 
ant of  Port  Arthur  of  what  had  passed  at  St.  Peters- 
burg forty-eight  hours  before. 

Some  countries,  in  order  to  avoid  any  surprise, 
take,  even  in  time  of  absolute  peace,  the  most  minute 
measures  of  vigilance  and  precaution.  This  is  what 
the  English  do  at  Gibraltar. 

What  are  the  Effects  of  War? 

Its  effects  are  of  two  kinds;  domestic  and  inter- 
national. 

The  first  has  reference  purely  to  internal  law, 
which  varies  with  different  countries  and  serves  to 
place  a  country  in  a  status  which  may  change  to  a 
greater  or  less  extent  its  domestic  arrangements,  from 
what  they  would  be  normally  in  time  of  peace.  Such 
would  be  in  certain  countries,  the  taking  over  of  the 
railroads  by  the  government,  the  calling  to  the  colors 
of  the  able  bodied  male  population,  etc.  In  the 
United  States  it  would  put  into  effect  certain  articles 
of  war  which  are  dormant  in  times  of  peace;  in  other 
respects  a  state  of  war  would  practically  make  no 
changes,  in  the  absence  of  specific  legislation,  in  our 
internal  conditions. 

We  will  here  consider,  however,  only  the  inter- 
national effects  of  war. 


5«  THIRD    LECTURE 

What  are  these  effects?  They  are  of  the  first 
importance,  and  it  should  be  remarked  that  they  con- 
cern, not  only  the  relations  of  belligerents  between 
themselves,  but  also  the  relation  of  belligerents  with 
other  countries. 

Sometimes  it  is  thought  that  the  situation  of  a 
neutral  state  may  be  indicated  by  the  very  term— 
but  this  is  an  erroneous  idea,  since  the  status  of 
neutrality  creates  obligations,  and,  from  this  it  fol- 
lows that  a  neutral  state  must  maintain  certain  rights 
and  exercise  certain  duties.  A  neutral  state  has  the 
right  to  inviolablity  for  its  territory,  and  may  enforce 
the  right  by  arms,  but  nothing  in  time  of  peace  pre- 
vents it  from  suspending  the  exercise  of  the  right. 
If  there  be  a  war,  however,  and  a  nation  remain 
neutral,  the  right  of  inviolability  which  exists  in  time 
of  peace  will  continue,  and  carry  with  it  the  obliga- 
tion to  sustain  such  inviolability,  in  order  to  prevent 
its  territory  from  being  crossed  by  one  of  the  bellig- 
erents. In  olden  times  war  was  looked  upon  as  a 
struggle  of  all  against  all.  This  idea,  which  obtained 
for  a  long  time,  was  given  up  as  the  result  of  certain 
very  clear  rules  formulated  for  the  first  time  by  Jean- 
Jaques  Rousseau,  and  taken  up  in  the  same  form 
sometime  afterward  by  the  jurisconsult  Portalis. 
Under  these  rules  it  is  admitted  that  war  is  a  relation 
existing  between  state  and  state,  and  that  it  is  armed 
forces  struggling  against  other  armed  forces.  As  a 
result  we  have  been  brought  to  the  point  of  establish- 
ing a  distinction  between  active  and  passive  enemies. 
Consequently  the  inoffensive  inhabitants  of  a  country 
must  be  respected. 

The  Breaking  of  Offical  Relations 
The  first  effect  of  war  is  shown  by  the  rupture  of 
diplomatic  relations,  if  they  have  not  been  previously 
ruptured,  and  by  the  rupture  of  official   relations, 


INTERNATIONAL    LAW  57 

which  is  not  a  synonymous  term,  because  countries 
maintain  commercial  agents  and  consuls,  who  continue 
to  exercise  their  functions  (even  in  the  case  of  a  re- 
call of  ambassadors  or  ministers  plenipotentiary)  and 
who  retire  only  in  time  of  war.  In  such  a  case  the 
archives  are  confided  to  a  friendly  power.  To  this 
power  are  also  confided  the  interests  of  nationals 
living  in  enemy  territory. 

During  the  Spanish-American  War,  the  interests 
of  Spaniards  residing  in  the  United  States  were  con- 
fided to  the  French  and  Austrian  agents,  and  those 
of  Americans  residing  in  Spain  to  the  English.  In 
the  same  way,  at  the  time  of  the  Greco-Turkish  War 
in  1897,  the  interests  of  the  200,000  Greek  subjects  in 
Constantinople  were  confided  to  the  agents  of  France, 
England  and  Russia. 

In  the  Case  of  a  Union  or  of  a  Confederation 

It  may  happen  that  a  belligerent  is  bound  to  an- 
other country  so  closely  that  one  may  ask  if  the  new 
situation  is  not  going  to  react  upon  this  other  state. 
Thus,  if  war  is  declared  against  a  state  which  forms 
part  of  a  confederation,  what  would  the  other  states 
do?  This  depends  upon  the  terms  of  the  confedera- 
tion. So  in  1859,  at  the  time  of  the  war  between 
Italy  and  Austria,  which  was  a  part  of  the  Germanic 
Confederation,  the  other  powers  of  the  Confedera- 
tion did  not  intervene,  since  Lombardy-Venetia,  al- 
though belonging  to  Austria,  did  not  form  a  part  of 
the  Confederation. 

Treaties  of  Alliance 

It  may  happen  that  as  a  result  of  a  treaty  of 
alliance  one  of  the  belligerents  is  bound  to  another 
power.  It  then  may  be  a  question  whether  the 
casus  foederis  has  been  reached.  Everything  depends 
on  the  treaty  which  has  been  concluded;  but  it  should 


68  THIRD    LECTURE 

be  remarked  that  it  is  possible  that  the  ally  ma/  in 
time  of  war  retain  its  neutrality.  At  the  time  of  the 
Russo-Japanese  war,  France,  the  ally  of  Russia,  re- 
mained neutral. 

What  we  must  look  at  is  the  actual  fact.  A  state 
is  allied  to  a  belligerent,  it  does  not  purpose  taking 
part  in  the  war,  and  the  other  belligerent  must  con- 
sider it  as  a  neutral.  While  this  belligerent  may  be 
f amilar  with  the  clauses  of  the  treaty  of  alliance  it 
may  desire  to  do  away  with  any  doubt  and  insist 
upon  the  allied  state  declaring  itself  for  neutrality, 
or  the  reverse.  In  general,  it  is  admitted  that  a  de- 
claration of  war  is  indispensable,  and  that  a  declara- 
tion of  neutrality  is  not  indispensable,  since  one  may 
presume  neutrality  but  wars  have  occurred  where  no 
declaration  has  been  made. 

Case  of  a  Protectorate  or  of  Vassalage 

The  same  question  as  in  regard  to  an  alliance 
may  be  raised  if  a  state  be  placed,  in  relation  to  an- 
other, in  a  position  of  protection  or  of  vassalage.  In 
such  a  case  one  is  still  unable  to  establish  an  absolute 
rule. 

If  France  were  at  war  it  would  be  hard  to  sup- 
pose Tunis  and  Annam  neutral;  both  these  countries 
being  technically  under  French  protectorates,  and 
being  garrisoned  by  French  troops,  I  have  used  the 
expression  "technically"  because  actually  these 
countries  are  as  much  French  possessions  as  is  Al- 
geria. Should  the  Philippines  become  a  protector- 
ate, they  would  be  in  the  same  position. 

But  there  are  other  cases  where  the  tie  of  pro- 
tection is  broad  and  permits  neutrality  to  be  main- 
tained. Thus,  the  Ionian  Isles,  under  the  protection 
of  England,  during  the  Crimean  War  continued  their 
commerce  with  Russia.  England  then  seized  an 
Ionian  vessel  which  was  going  to  a  non-blockaded 


INTERNATIONAL    LAW  59 

Russian  port;  the  prize  court  found  England  in  the 
wrong,  and  the  latter  was  obliged  to  release  the 
vessel. 

We  may  ask  whether  neutrality  is  possible  in  the 
case  of  a  vassal  state.  During  the  Greco-Turkish 
War,  Bulgaria  deemed  that  it  should  remain  neutral. 
The  Greek  agents  continued  to  reside  at  Sophia. 
Egypt  would  have  liked  to  have  remained  neutral, 
but  after  some  hesitation,  she  had  to  pronounce  her- 
self for  Turkey.  The  hostility  of  Egypt,  however, 
was  restricted  to  an  abstention  from  diplomatic  re- 
lations with  the  Greek  agent,  who  discontinued  his 
functions. 

Effects  of  War  on  Treaties  Previously  Concluded 
Between  Belligerents 

The  generally  accepted  idea  is  that  in  time  of 
war  treaties  between  the  belligerents,  are,  of  right, 
annulled  and  broken.  This  was  the  view  which  pre- 
vailed at  the  time  of  the  war  between  France  and 
Germany.  The  admitted  consequence  is  that  treaties 
do  not  revive  as  the  result  of  a  return  to  pacific  rela- 
tions. However,  there  is  a  class  of  treaty  in  regard 
to  which  no  doubt  exists.  Such  are  treaties,  conven- 
tions, or  agreements,  made  in  view  of  war,  and  in 
which  the  belligerents  are  not  the  sole  parties;  for 
example,  the  convention  of  Geneva;  in  case  of  hostili- 
ties, treaties  and  conventions  of  this  class  remain  in 
force. 


FOURTH  LECTURE 

Situation  of  Persons 

aT  the  moment  when  war  breaks  out,  nationals 
of  each  of  the  belligerents  may  be  established 
within  the  territory  of  the  other.  Their  situation  must 
be  considered  from  two  points  of  view:  the  relation  of 
such  persons  to  their  own  country,  and  their  relation 
to  the  enemy  state  in  whose  territory  they  find  them- 
selves. 

1.  Relation  op  the  Nationals  Established 
in  Enemy  Country,  to  their  Own  State. -Their 
government  may  recall  them.  Napoleon  I  frequently 
used  this  right,  and  his  decrees  of  1809  and  1811,  on 
this  subject,  are  couched  in  terms  of  extreme  violence. 
A  state  may  forbid  its  nationals  either  to  go  to  an 
enemy  country  or  to  remain  there. 

2.  Relation  of  the  Nationals  of  a  Belliger- 
ent to  the  Enemy  State  in  Whose  Territory 
they  Live  and  are  Established.— In  olden  times 
and  up  to  the  beginning  of  the  XIX  century  they  were 
recognized  as  prisoners  of  war.  In  1804,  at  the  rup- 
ture of  the  peace  of  Amiens,  Napoleon  I  answered  the 
violent  measures  of  England  by  arresting  10,000 
Englishmen,  between  the  ages  of  18  and  60,  residing 
on  French  territory.  In  our  days  such  a  proceeding 
would  not  be  possible.  War  does  efface  the  effects  of 
preexisting  peace;  war  may  not  be  retroactive,  and 
besides,  usually  when  foreigners  establish  themselves 
in  a  country  it  is  under  the  protection  of  existing  laws 
which  do  not  contemplate  the  exceptional  measures 
of  which  we  have  just  spoken;  often  it  is  by  favor  of 
special  treaties  providing  for  such  establishment. 

61 


62  FOURTH    LECTURE 

The  foreign  nationals  must  be  allowed  to  leave, 
even  those  who  hold  positions  in  the  armies  of  their 
own  country  and  who  shortly  will  be  actively  en- 
gaged in  fighting  against  the  country  of  their  late 
residence.  In  1870  France  hesitated  in  regard  to  the 
officers  of  the  Landwehr.  Finally,  however,  they 
were  left  free,  and  this  was  proper.  The  general 
development  on  the  continent  of  Europe  of  universal 
obligatory  service  would  render  precarious  the  rela- 
tions of  citizens  of  the  various  countries  should  we 
return  to  the  ancient  custom. 

But  has  a  state  the  absolute  duty  of  tolerating 
such  foreigners  in  its  territory?  May  it  not  expel 
them?  Clearly,  it  may  tolerate  them,  and  then  it  has 
the  right  to  watch  them.  Foreigners  remaining  in 
belligerent  territory  by  their  own  will  are  subject  to 
the  local  law  and  may  not  withdraw  themselves  there- 
from, even  under  favor  of  a  military  occupation  by 
an  army  of  their  own  country.  The  Court  of  Nancy, 
after  the  war  of  1870,  made  a  remarkable  application 
of  this  right  in  inflicting  the  penalty  of  the  77th  Ar- 
ticle of  The  French  Penal  Code  upon  a  German,  who, 
during  the  period  of  military  occupation,  thought  he 
had  the  right  to  conclude  a  commercial  venture  in 
supplies  with  his  own  invading  nationals. 

In  regard  to  the  right  of  expulsion,  it  undoubt- 
edly exists  as  a  point  of  International  Law;  it  is  only 
just  that  it  should  be  so.  There  may  be  serious  dan- 
ger in  keeping  in  national  territory,  at  the  moment 
of  invasion,  individuals  of  the  hostile  state  who,  by 
uniting,  constitute  hostile  centers  or  even  centers  of 
espionage  and  who,  during  the  course  of  the  war,  one 
would  be  obliged  to  protect  against  the  molestation 
of  ones  own  nationals.  While  International  Law 
however,  would  warrant  the  expulsion,  the  question 
of  expulsion  from  the  practical  side,  must  depend  on 
the  municipal  law  of  the  country  which  desires  to  put 


INTERNATIONAL    LAW  63 

the  right  of  expulsion  in  force.  In  the  United  States, 
for  instance,  I  know  of  no  law  which  would  permit 
the  expulsion  of  a  foreigner  residing  peacefully  in  the 
country  and  committing  no  act  of  hostility,  because 
such  foreigner  is  a  national  of  a  country  with  which 
the  United  States  is  at  war. 

In  each  particular  case  the  solution  to  be  reached 
depends  on  the  circumstances;  in  every  war  these 
vary,  and  besides,  in  the  same  war  they  are  not  iden- 
tical for  each  of  the  belligerents;  this  renders  im- 
practicable, in  the  premises,  the  principle  of  reci- 
procity. During  the  Crimean  and  Austrian  Wars, 
Russians  and  Austrians  residing  in  France  were  not 
disturbed  as  their  presence  in  that  country  was  not 
disturbing,  the  wars  being  waged  elsewhere.  In 
1870,  however,  the  French  felt  constrained  to  expel 
all  Germans  from  the  city  of  Paris  on  the  eve  of  its 
investment,  although  they  were  not  necessarily  ex- 
pelled from  the  rest  of  France.  Germany,  on  the 
other  hand,  allowed  Frenchmen  to  remain  within  her 
borders;  they  were  comparatively  few  in  number  and 
Germany  was  conducting  the  war  in  France.  Dur- 
ing the  war  with  Spain  I  know  of  no  case  in  which  a 
Spaniard,  because  of  his  nationality,  was  expelled 
from  the  United  States. 

After  the  declaration  of  war  of  1897  Turkey  wish- 
ed to  expel  the  Greeks  established  in  her  territory; 
there  were  200,000  of  them,  of  whom  35,000  were  in 
Constantinople  alone.  She  gave  them  15  days  in 
which  to  leave.  The  protecting  powers,  however, 
intervened,  with  all  the  more  authority  since  the 
Greeks  in  Constantinople  were  almost  all  employed 
by  English,  Russian  or  French  commercial  houses, 
the  interests  of  which  would  have  been  gravely  com- 
promised by  this  sudden  exodus.  Besides,  the  war 
was  taking  place  outside  of  Ottoman  territory.     Tur- 


62  FOURTH    LECTURE 

The  foreign  nationals  must  be  allowed  to  leave, 
even  those  who  hold  positions  in  the  armies  of  their 
own  country  and  who  shortly  will  be  actively  en- 
gaged in  fighting  against  the  country  of  their  late 
residence.  In  1870  France  hesitated  in  regard  to  the 
officers  of  the  Landwehr.  Finally,  however,  they 
were  left  free,  and  this  was  proper.  The  general 
development  on  the  continent  of  Europe  of  universal 
obligatory  service  would  render  precarious  the  rela- 
tions of  citizens  of  the  various  countries  should  we 
return  to  the  ancient  custom. 

But  has  a  state  the  absolute  duty  of  tolerating 
such  foreigners  in  its  territory?  May  it  not  expel 
them?  Clearly,  it  may  tolerate  them,  and  then  it  has 
the  right  to  watch  them.  Foreigners  remaining  in 
belligerent  territory  by  their  own  will  are  subject  to 
the  local  law  and  may  not  withdraw  themselves  there- 
from, even  under  favor  of  a  military  occupation  by 
an  army  of  their  own  country.  The  Court  of  Nancy, 
after  the  war  of  1870,  made  a  remarkable  application 
of  this  right  in  inflicting  the  penalty  of  the  77th  Ar- 
ticle of  The  French  Penal  Code  upon  a  German,  who, 
during  the  period  of  military  occupation,  thought  he 
had  the  right  to  conclude  a  commercial  venture  in 
supplies  with  his  own  invading  nationals. 

In  regard  to  the  right  of  expulsion,  it  undoubt- 
edly exists  as  a  point  of  International  Law;  it  is  only 
just  that  it  should  be  so.  There  may  be  serious  dan- 
ger in  keeping  in  national  territory,  at  the  moment 
of  invasion,  individuals  of  the  hostile  state  who,  by 
uniting,  constitute  hostile  centers  or  even  centers  of 
espionage  and  who,  during  the  course  of  the  war,  one 
would  be  obliged  to  protect  against  the  molestation 
of  ones  own  nationals.  While  International  Law 
however,  would  warrant  the  expulsion,  the  question 
of  expulsion  from  the  practical  side,  must  depend  on 
the  municipal  law  of  the  country  which  desires  to  put 


INTERNATIONAL    LAW  63 

the  right  of  expulsion  in  force.  In  the  United  States, 
for  instance,  I  know  of  no  law  which  would  permit 
the  expulsion  of  a  foreigner  residing  peacefully  in  the 
country  and  committing  no  act  of  hostility,  because 
such  foreigner  is  a  national  of  a  country  with  which 
the  United  States  is  at  war. 

In  each  particular  case  the  solution  to  be  reached 
depends  on  the  circumstances;  in  every  war  these 
vary,  and  besides,  in  the  same  war  they  are  not  iden- 
tical for  each  of  the  belligerents;  this  renders  im- 
practicable, in  the  premises,  the  principle  of  reci- 
procity. During  the  Crimean  and  Austrian  Wars, 
Russians  and  Austrians  residing  in  France  were  not 
disturbed  as  their  presence  in  that  country  was  not 
disturbing,  the  wars  being  waged  elsewhere.  In 
1870,  however,  the  French  felt  constrained  to  expel 
all  Germans  from  the  city  of  Paris  on  the  eve  of  its 
investment,  although  they  were  not  necessarily  ex- 
pelled from  the  rest  of  France.  Germany,  on  the 
other  hand,  allowed  Frenchmen  to  remain  within  her 
borders;  they  were  comparatively  few  in  number  and 
Germany  was  conducting  the  war  in  France.  Dur- 
ing the  war  with  Spain  I  know  of  no  case  in  which  a 
Spaniard,  because  of  his  nationality,  was  expelled 
from  the  United  States. 

After  the  declaration  of  war  of  1897  Turkey  wish- 
ed to  expel  the  Greeks  established  in  her  territory; 
there  were  200,000  of  them,  of  whom  35,000  were  in 
Constantinople  alone.  She  gave  them  15  days  in 
which  to  leave.  The  protecting  powers,  however, 
intervened,  with  all  the  more  authority  since  the 
Greeks  in  Constantinople  were  almost  all  employed 
by  English,  Russian  or  French  commercial  houses, 
the  interests  of  which  would  have  been  gravely  com- 
promised by  this  sudden  exodus.  Besides,  the  war 
was  taking  place  outside  of  Ottoman  territory.     Tur- 


64  FOURTH    LECTURE 

key  accepted  these  reasons,  and  the  sultan  withdrew 
his  iradie. 

Property 

In  regard  to  the  property  belonging  to  enemy 
nationals  within  the  territory  of  a  belligerent  state, 
the  same  rule  was  formerly  followed  as  was  applic- 
able to  the  persons  themselves,  i.e.,  property  became 
by  the  declaration  of  war,  true  res  nullius.  The 
English,  in  particular,  had  made  of  confiscation  a  well 
studied  procedure  of  maritime  war.  At  the  begin- 
ning of  a  period  of  political  international  tension  they 
commenced  by  placing  an  embargo  on  all  commercial 
vessels  of  the  adverse  nation  which  were  in  English 
ports;  in  case  war  was  declared,  this  embargo  was 
transformed  into  a  confiscation  pure  and  simple. 
This  system  used  to  provoke  violent  reprisals,  and  to 
answer  it,  the  revolutionary  governments  of  France 
and  that  of  Napoleon  I  placed  under  sequestration  the 
goods  of  the  English  domiciled  in  France.  The  treat- 
ies of  1814  contain  certain  clauses  relating  to  such 
property. 

At  the  time  of  the  Crimean  War  England  and 
France  inaugurated  a  system  more  in  accord  with 
justice.  Not  only  did  they  not  place  an  embargo  on 
Russian  vessels  but  they  allowed  them  a  delay  in 
which  to  close  out  their  operations  and  reenter  their 
own  ports.  Again,  in  1870,  German  commercial 
ships  which  were  in  French  waters  at  the  time  of  the 
declaration  of  war  received  safe-conducts  and  were 
enabled  to  regain  in  security,  German  ports.  But  let 
us  hasten  to  say  that  this  practice  is  entirely  indi- 
vidual. No  rule  of  international  law  imposes  any 
obligation  of  safe-conduct  or  delay. 

Without  discussing  the  affair  of  Chemulpo,  which 
was  an  unjustifiable  one  since  it  involved  the  threat 
of  an  attack  on  an  enemy  sheltered  by  a  then  neutral 


INTERNATIONAL    LAW  06 

harbor,  the  adversaries  in  the  Russo-Japanese  war 
allowed  commercial  vessels  only  very  short  delays 
and  it  would  seem  that  a  number  of  abuses  of  power 
were  then  committed.  England,  by  the  way,  seems 
to  regret  the  ancient  practice.  One  of  her  juriscon- 
sults—and he  not  an  unimportant  one— has  not  been 
afraid,  in  recent  times,  to  set  forth  the  following 
doctrine: 

Since,  in  our  days,  commercial  vessels  may  be 
readily  transformed  into  rapid  cruisers  or  ultimately 
serve  as  powerful  means  of  transport,  let  us  suppose 
that  one  of  the  belligerents  has  the  luck  to  have, 
within  its  reach  in  its  ports  at  the  moment  of  political 
tension,  a  certain  number  of  these  vessels  belonging 
to  the  nation  with  which  it  is  about  to  go  to  war;  will 
it  allow  them  to  escape?  Such  an  act  would  be  one 
of  criminal  folly. 

In  the  Proclamation  of  the  President  announcing 
the  Spanish  War  (April  25,  1898)  thirty  days  were 
allowed  to  strictly  neutral  Spanish  vessels  in  which 
to  load  or  discharge  their  cargoes  and  leave  United 
States  waters. 

The  conference  of  The  Hague,  1907,  adopted  a 
convention  which  is  about  what  the  French  delega- 
tion had  proposed,  and  by  virtue  of  which  commercial 
vessels  which  are  not  transformable  into  war  vessels 
may  have  a  delay  as  a  matter  of  grace,  and  may  not 
be  confiscated.  As  for  the  others,  the  belligerent 
parties  may  appropriate  them,  paying  an  indemnity; 
the  interests,  both  of  belligerents  and  of  commerce 
are  thus  taken  into  account.  This  convention  is  not 
what  I  will  call  a  very  strong  one  in  its  provisions, 
and  has  not  been  accepted  by  United  States. 

In  that  which  relates  to  property  on  land,  the  most 
rigorous  measure  which  was  taken  during  the  last 
century  was  the  sequestration  of  which  we  have 
already  spoken.    This  measure,  even,  is  no  longer  in 


W  FOURTH    LECTURE 

practice  and,  actually,  no  nation  claims  a  right  to 
confiscate  property  belonging  to  nationals  of  the 
enemy.  Besides,  at  the  conference  of  The  Hague,  in 
1907,  there  was  inserted  in  Article  23  a  prohibition 
against  declaring  abolished,  suspended  or  inadmis- 
sable  in  a  court  of  law  the  rights  and  actions  of  the 
nationals  of  the  hostile  party. 

The  Laws  of  War 

Are  there  any  laws  of  war?  Or,  on  the  contrary, 
should  the  liberty  of  a  belligerent,  as  to  the  means  to 
be  employed  to  reduce  the  adversary,  be  unrestricted? 
In  barbarous  days  the  question  was  not  even  consid- 
ered, and  for  a  long  time  the  adage  obtained:  "Inter 
arma  silent  leges." 

However,  the  progress  of  civilization  led  to  the 
admission  that  war,  if  it  confers  rights,  also  imposes 
upon  the  belligerents  certain  duties;  this  condition  of 
mind  is  made  very  clear  by  the  fact  that  a  single  iso- 
lated act  of  small  real  importance,  committed  in 
violation  of  these  duties,  raises  greater  indignation 
than  do  the  hecatombs  of  a  great  battle. 

War  may  not  lose  sight  of  the  facts  on  which  are 
based  international  law,  of  the  sovereignty  of  states, 
of  their  political  independence,  nor  particularly,  of 
their  mutual  economic  dependency;  war  may  not  be 
conducted  by  a  method  of  procedure  in  total  opposi- 
tion to  the  state  of  civilization  which  we  have  reached 
and  to  established  custom. 

A  regard  for  all  these  facts  has  led  to  customs 
which  have  grown  and  been  developed  in  the  same 
ratio  as  a  clearer  understanding  of  the  facts  has 
grown  and  been  developed. 

Today,  the  right  of  war  is  dominated  by  two 
principles.  The  principle  of  necessity  and  the  princi- 
ple of  humanity.  These  principles  rest  upon  two  es- 
sential ideas,  the  first,  due  probably  to  J.  J.  Rousseau, 


INTERNATIONAL    LAW  67 

is  that  war  is  a  relation  of  state  against  state  and 
not  a  struggle  of  all  against  all,  an  important  idea 
in  that  which  regards  the  relations  of  an  invader  with 
the  inhabitants,  who  are  only  passive  enemies  in  con- 
tradistinction to  the  soldiery,  who  are  active  enemies. 
The  second  is,  that  the  purpose  of  war  being  to  im- 
pose one's  will  upon  the  adversary,  all  acts  foreign  to 
this  end  or  going  beyond  it,  should  be  prohibited;  un- 
necessary harshness  must  be  avoided,  and  one  must 
refrain  from  doing  evil  for  the  sake  of  evil;  one  must 
act  in  all  this  with  a  view  to  the  normal  condition  of 
international  relations — a  state  of  peace— which  would 
never  be  stable  if  unjustifiable  cruelties  in  war  were 
allowed  to  engender  undying  hatreds. 

Under  the  empire  of  these  ideas  the  usages  ac- 
cepted by  the  consent  of  all  nations  have  little  by 
little  been  determined  and  have  assumed  the  force  of 
law,  thus  establishing  the  rules  of  the  customs  of  war 
which  render  war  infinitely  less  hard  than  in  bygone 
days. 

From  the  time  this  was  established,  each  govern- 
ment has  been  able  to  give  to  its  armies  instructions 
conforming  to  the  principles  of  these  rules.  Such  in- 
structions, quite  short  when  they  are  addressed  to 
professional  soldiers  imbued  with  traditions,  had  to 
be  more  fully  developed  in  order  to  be  placed  within 
reach  of  armies  younger  and  more  numerous.  Thus, 
it  was  the  United  States  government  which  first,  at 
the  time  of  the  war  of  secession,  gave  to  its  armies 
prepared  regulations  (General  Order  No.  100) .  Pres- 
ident Lincoln  had  to  have  prepared  for  his  improvised 
troops,  without  traditions  and  even  without  discipline, 
instructions  in  regard  to  the  conduct  to  be  maintained 
against  the  inhabitants  and  armies  of  the  enemy.  It 
was  a  German  jurisconsult,  Dr.  Lieber,  then  settled 
in  America,  who  was  charged  with  this  task.  His 
work,  the  true  point  of  departure  of  the  codification  of 


68  FOURTH    LECTURE 

the  laws  of  war,  revised  by  a  committee  of  officers, 
and  then  published,  is  a  verbose  document,  confusing 
and  in  too  great  detail  because  it  was  addressed  to  an 
army  without  traditions  and  because  it  had  relation 
to  a  special  war.  It  is  interesting,  however,  on  ac- 
count of  having  been  the  first  which  appeared  on  this 
matter  and  the  first  which  considered  most  of  the 
questions  which  later  would  be  examined  by  the  great 
international  conferences.  The  document  is  unila- 
teral and  not  international,  and  the  instructions 
which  it  contains  were  again  published  by  the  United 
States  at  the  time  of  their  war  with  Spain. 

What  I  have  just  said  embodies  the  views  of 
Prof.  Renault  which  are,  I  think,  open  to  some  crit- 
icism. The  idea  that  quite  short  instructions  are  suf- 
ficient for  professional  soldiers  '  'imbued  with  tradi- 
tions" may  be  true,  provided  that  the  traditions  are 
to  be  maintained.  If,  however,  a  radical  departure 
is  made  from  those  traditions  it  would  seem  that  the 
new  rules  which  are  to  take  their  place  must  be  fully 
set  forth.  The  traditions  of  the  French  army  in  the 
Palatinate  can  hardly  have  been  of  much  use  to  the 
soldiers  of  the  French  republic  or  of  Napoleon  I,  and 
the  traditions  of  the  armies  of  that  emperor  cannot 
have  been  of  much  use  to  the  French  troops  in  Crimea 
or  in  the  war  with  Austria.  Where  a  new  departure 
is  taken,  or  where  a  somewhat  elastic  set  of  unwrit- 
ten rules  are  replaced  by  a  code  of  positive  require- 
ments, it  it  hard  to  see  how  the  code  may  be  epito- 
mized, until  all  the  principles  it  contains  have  been 
fully  made  known.  It  is  true  that  where  professional 
armies  exist  there  can  be  a  division  of  the  rules,  the 
officer  acquiring  all  the  rules  and  the  enlisted  men 
being  furnished  with  only  such  items  of  the  code  as 
are  required  for  their  personal  guidance.  Under 
this  reasoning  it  would  seem  proper  that  officers 
charged  with  the  instruction  of  enlisted  men  should 


INTERNATIONAL    LAW  69 

eliminate  from  the  course  of  instruction  those  rules 
which  the  enlisted  men  cannot  be  expected  to  need. 
Under  our  American  system  when  war  comes,  the 
country  is  largely  dependent  for  a  time  on  an  amateur 
army  which  must  learn  at  once  in  regard  to  things 
military,  all  that  which  should  demand  the  study  of 
a  lifetime.  In  the  case  of  General  Order  No.  100, 
there  was  a  twofold  object.  First,  the  education  of 
an  army  in  which  a  vastly  preponderating  number 
of  officers  and  men  had  previously  given  no  thought 
or  study  to  the  laws  of  war,  and  second,  the  establish- 
ment in  a  written  and  codified  form  of  customs  and 
principles  which  up  to  then,  had  never  been  formu- 
lated. To  these  objectives  the  work  of  Professor 
Lieber  would  appear  to  have  been  singularly  well 
adapted.  I  may  add  that  the  instructions  formulated 
by  England  and  France  (1913)  in  conformity  with 
Article  1  of  The  Hague  Conference  on  Land  Warfare, 
are  quite  as  voluminous  and  verbose  as  were  those 
contained  in  G.  0.  No.  100,  if  not  more  so. 

Other  efforts  to  establish  regulations  have  been 
made  in  different  countries.  It  is  thus  that  the  French 
"Service  en  Campagne"  contains  certain  points,  very 
succinctly  stated,  of  international  law,  and  that,  since 
1877,  France  has  possessed  a  manual  of  international 
law  for  the  use  of  land  armies,  prepared  with  great 
care  by  Mr.  Billot.  A  similar  manual  appeared  in  Italy 
in  1884.  We  have  "The  Laws  of  War"  published  as 
a  part  of  our  "Field  Service  Regulations." 

Since  then  the  question  has  been  raised  as  to 
whether  it  were  better  to  stop  there  and  to  leave  to 
each  government  the  care  of  tracing,  for  its  own 
armies,  particular  rules,  or  whether  it  were  preferable 
to  evoke,  in  time  of  peace,  an  international  under- 
standing in  order  to  enter  into  reciprocal  engage- 
ments—in other  words,  to  substitute  a  written  law  of 
war  for  the  custom  of  war. 


70  FOURTH    LECTURE 

Notwithstanding  opposition,  based  either  on  the 
suggested  necessity  of  allowing  the  laws  of  war  to 
follow  a  free  system  of  evolution  conforming  to  the 
constant  progress  of  civilization,  or,  on  the  contrary, 
on  the  advantage  of  allowing  to  war  all  its  horrors,  in 
order  that  we  might  see  it  disappear  the  sooner,  the 
idea  has  prevailed  that  it  was  best  to  have  precise 
rules  rather  than  uncertain  customs  and  the  effort  has 
been  made  to  fix,  by  international  agreement,  univer- 
sal rules  of  international  law  for  time  of  war. 

The  first  effort  to  establish  regulations  dates  from 
the  Declaration  of  Paris  (16th  April,  1856)  which  de- 
cided, in  maritime  war,  on  the  suppression  of  priva- 
teering, a  decision  soon  ratified  by  all  the  states  repre- 
sented at  the  congress  and  later  even  accepted  by  those 
which  were  not  represented  (Spain,  the  United  States 
and  Mexico  excepted). 

Then  came  the  Convention  of  Geneva,  due  to  the 
initiative  of  Switzerland  supported  by  Napoleon  III, 
and  now  accepted  by  all  the  states  of  the  world. 
This  convention  had  for  its  purpose  the  amelioration 
of  the  condition  of  wounded  soldiers  of  armies  in 
campaign,  and  transformed  into  a  legal  obligation  a 
duty,  which  up  to  that  time  had  been  only  a  moral 
one,  making  it  incumbent  upon  the  conqueror  to  care 
for  the  enemy  and  establishing,  in  the  interests  of  the 
sick  and  wounded,  certain  immunities  for  the  sanitary 
personnel  (22d  August,  1864).  This  convention  was 
replaced  by  that  of  the  6th  July,  1906. 

From  this  on,  it  is  to  the  presistent  initiative  of 
Russia  that  we  owe  all  the  ameliorations  brought  about 
in  the  laws  of  war.  In  1868,  the  Czar  Alexander  II 
convened  an  international  commission  which  formu- 
lated the  Declaration  of  St.  Petersburg  (11th  Decem- 
ber, 1868),  which  only  bore,  is  is  true,  on  a  very 
specialized  point,  the  prohibition  of  the  use  of  certain 


INTERNATIONAL    LAW  71 

explosive  projectiles,  but  which  was  accompanied  by 
very  important  general  considerations. 

In  1874  the  same  sovereign  led  the  way  to  the 
meeting  of  an  international  conference  for  the  pur- 
pose of  determining  a  basis  for  the  law  of  war  on  land. 
The  Conference  of  Brussels,  held  in  July  and  August, 
1874,  under  the  presidency  of  the  Russian  Baron 
Jomini,  and  composed  of  military  men,  of  diplomats, 
and  of  jurisconsults,  formulated  an  elaborate  project 
which  was  inspired  by  our  General  Order  No.  100 
of  1863. 

But  in  the  discussions  an  antagonism  of  ideas  was 
soon  seen  to  arise  between  the  great  states  and  the 
smaller  ones,  the  latter  sustained,  by  the  way,  by 
England.  The  great  powers  desired  to  concentrate 
the  effects  of  war  upon  the  active  belligerents  and 
to  admit  a  struggle  only  between  organized  forces. 
The  smaller  states,  on  the  contrary,  which  were  only 
capable  of  engaging  in  a  defensive  war,  did  not  wish 
to  renounce  the  right  to  call  on  their  populations  to 
repel  an  invader,  and  they  asked  themselves  if  the 
result  of  certain  of  the  rules  which  it  was  desired  to 
establish  would  not  go  to  strengthen,  by  law,  the 
actual  superiority,  already  so  marked,  of  the  great 
powers.  It  was  possible  to  reach  but  one  project; 
another  conference  which  it  was  proposed  to  hold 
at  St.  Petersburg  was  to  transform  this  into  a  defi- 
nite convention.  The  additional  meeting  did  not 
take  place,  England  having  called  attention  to  the 
fact  that  there  had  come  into  play  interests  of  too 
contradictory  a  nature  to  end  in  an  unanimous  under- 
standing and  having  refused  to  join  the  conference. 

The  work  of  the  Brussels  Conference  is,  none 
the  less,  of  considerable  importance,  since  it  was  the 
result  of  an  international  inquiry  in  which  were 
joined  the  most  competent  men,  and  also  because  the 
various  governments  became  inspired  by  it  to  pre- 


72  FOURTH    LECTURE 

pare  the  private  regulations  of  which  we  have 
already  spoken.  Certain  states  at  the  outbreak  of 
war  have  declared  themselves  as  desiring  to  conform 
to  the  resolutions  adopted  at  Brussels.  Thus  Russia, 
when  it  entered  into  a  struggle  with  Turkey  in  1877, 
declared  that  it  would  apply  these  rules,  and  in  1881 
appeared  a  Russian  work  by  de  Maertens,  giving 
very  interesting  details  as  to  their  application  during 
the  campaign. 

The  Hague  Convention 

The  foregoing  project  was  again  to  be  taken  up 
and  rehandled  in  1899,  at  the  time  of  the  First  Peace 
Conference.  An  understanding  was  reached,  thanks 
to  the  skill  of  the  president  of  the  conference,  who 
changed  the  order  of  the  articles  and  devoted  him- 
self to  presenting  first  for  discussion  those  on  which 
an  agreement  would  be  easy,  the  remainder  were 
later  readily  accepted. 

The  convention  comprised  two  parts: 

1.  A  convention  with  a  small  number  of  articles. 

2.  A  set  of  regulations  annexed  thereto  con- 
taining about  sixty  articles. 

The  Convention 

In  the  first  part  the  high  contracting  parties  en- 
gaged themselves  to  give  to  their  troops  instructions 
in  conformity  with  the  regulations  annexed  to  the 
convention.  They  thus  entered  into  an  obligation, 
and  this  obligation,  an  absolutely  juridical  one,  is  ac- 
centuated in  the  second  article,  which  sets  forth  that: 
"The  provisions  contained  in  the  Regulations  refer- 
red to  in  Article  I,  as  well  as  in  the  present  Conven- 
tion, do  not  apply  except  between  Contracting  Pow- 
ers, and  then  only  if  all  the  belligerents  are  parties 
to  the  Convention." 


INTERNATIONAL    LAW  73 

The  convention  as  a  whole  is,  according  to  a  well 
chosen  expression  used  at  the  time,  '  'a  mutual  assur- 
ance against  the  abuses  of  war." 

Nevertheless,  the  Great  German  Staff  (Historical 
section)  published  in  1902,  as  what  may  be  called  in- 
ternal regulations,  "The  Laws  of  Continental  War- 
fare," in  which  the  convention  of  The  Hague  is 
spoken  of  in  the  same  terms  as  was  the  project  of 
the  conference  of  Brussels.  A  moral  value  only 
appeared  to  be  attached  to  it.  Certain  jurisconsults 
took  up  this  fact  and  in  1907,  at  the  time  of  the 
Second  Hague  Conference,  the  question  was  con- 
sidered. With  great  skill  the  German  delegation 
took  the  advance  and  submitted  to  the  conference 
an  article  which  was  inserted  in  the  convention. 
According  to  this  article:  "A  belligerent  party  which 
violates  the  provisions  of  the  said  Regulations  shall, 
if  the  case  demands,  be  liable  to  pay  compensation. 
It  shall  be  responsible  for  all  acts  committed  by 
persons  forming  part  of  its  armed  forces."  The 
obligatory  nature  of  the  convention  was  thus,  by  the 
indemnity  provision,  rendered  clear  and  positive. 

The  rules  of  1899  were  revised  in  1907,  but  no 
really  essential  changes  were  incorporated.  How- 
ever, we  will  call  attention  to  certain  improvements. 

Governments  have  the  greatest  interest  (pecuni- 
ary and  moral),  in  bringing  the  regulations  with  which 
we  are  concerned  to  the  knowledge  of  their  troops 
and  not  wait  for  that  purpose  until  the  moment  of 
war.  A  moral  training  is  necessary,  practiced  for  a 
long  time  in  advance,  if  we  are  to  hope  that  armies 
will  respect  the  laws  of  war.  Notwithstanding  all 
precautions,  however,  we  must  not  expect  too  much. 
Unexpected  cases  will  present  themselves. 

Each  belligerent  will  have  great  interest  in  him- 
self observing  these  laws  of  war,  and,  when  con- 
fronted by  an  adversary  who  may  appear  to  hav* 


74  FOURTH    LECTURE 

violated  them,  a  belligerent  must  be  careful  to  act 
without  precipitation;  he  must  examine  things  equi- 
tably in  order  to  formulate  later  only  claims  which 
will  be  entirely  justified. 

Rules  Annexed  to  The  Hague  Convention 

These  rules  cover  two  main  questions; 

1.  Hostilities. 

2.  Military  authority  in  enemy  country. 

Hostilities 

This  subject  is  itself  subdivided  under  two 
heads: 

1.  The  definition  of  the  nature  of  a  belligerent. 

2.  In  what  hostilities  consist. 

Of  Belligerents  and  Enemies  in  General 

From  the  actual  idea  of  war— considered  no 
longer  as  a  struggle  of  all  against  all,  but  as  a  rela- 
tion between  state  and  state— there  has  been  born 
an  important  distinction  to  be  made  between  the 
nationals  of  a  state  at  war,  in  order  to  know  which  of 
these  may  take  part  in  hostilities,  and  which  are 
those  against  whom  hostilities  may  be  taken.  To  all 
the  nationals  of  a  country  with  which  one  is  at  war 
the  term  ' 'enemy* '  is  applicable;  but  certain  of  them 
are  active  enemies,  and  others,  passive;  certain  of 
them  are  combatants,  and  others,  non-combatants. 

The  first,  the  agents  of  the  state  both  in  attack 
and  defense,  may  take  part  in  hostilities  and  hostili- 
ties may  be  waged  against  them;  they  are  subject 
only  to  the  laws  of  war  and  not  to  the  penal  laws; 
if  they  fall  into  the  hands  of  the  adversary  they  may 
be  prevented  from  again  taking  part  in  the  struggle; 
they  may  be  held  prisoners  but  they  may  not  be  sub- 
jected to  penalties;  their  acts  of  hostility  are  entirely 
lawful. 


INTERNATIONAL    LAW  75 

Passive  enemies  continue  their  pacific  occupa- 
tions, and,  upon  condition  of  committing  no  act  of 
hostility,  are  respected  by  the  adversary;  an  excep- 
tion exists,  however,  as  to  the  respect  for  what  we 
may  call  their  neutrality,  in  the  exercise  of  the  right 
of  requisition,  which  weighs  upon  all  the  inhabitants 
of  the  invaded  country  whatever  be  their  nationality, 
whether  they  be  enemies  or  neutrals. 

Who  Are  the  Belligerents? 

First,  all  men  of  the  regular  army,  whatever  be 
its  method  of  organization  —  permanent  service, 
militia  or  volunteers,  as  the  terms  are  understood 
with  us  and  in  England. 

The  characteristics  of  this  army  are: 

1.  A  regular  organization  by  the  state. 

2.  A  common  authority  and  discipline. 

3.  A  uniform. 

Foreign  Contingents.— A  belligerent  may  in- 
clude within  its  armies  any  individuals  whom  it  sees 
fit  to  take.  It  is  not  for  the  enemy  to  make  a  dis- 
tinction. In  certain  armies  there  are  to  be  found 
only  nationals;  this  is  the  French  and  German 
principle.  Nevertheless,  France  has  a  Foreign 
Legion,  which  is  intended  for  service  only  in  Algeria 
or  in  the  colonies.  As  a  matter  of  fact,  the  Legion 
should  not  serve  in  a  European  war,  because  it  con- 
tains Alsace-Lorrainers,  Germans,  Englishmen  and 
other  foreigners.  The  nationality  of  these  Alsace- 
Lorrainers  remains  doubtful,  as  a  result  of  a  differ- 
ence in  the  interpretation  of  the  treaty  of  Frankfort 
by  the  two  contracting  nations.  For  foreigners  em- 
ployed against  their  nation  of  origin  the  case  is 
covered  by  Art.  23,  of  the  rules  of  The  Hague: 

" ■— • .     A  belligerent  is  likewise  forbidden  to 

compel  the  nationals  of  the  hostile  party  to  take  part 


76  FOURTH    LECTURE 

in  the  operations  of  war  directed  against  their  own 
country,  even  if  they  were  in  the  belligerent's  service 
before  the  commencement  of  the  war." 

To  hold  otherwise  would  be  contrary  to  moral 
sense  and  the  to  most  elementary  principles  of  inter- 
national law,  because  a  belligerent  would  have  the 
right  to  consider,  and  to  treat,  as  traitors,  its  nationals 
engaged  in  war  against  it. 

Colonial  Contingents.— What  should  be  said  of 
colonial  subjects,  of  an  inferior  degree  of  civilization, 
as  to  whom  it  is  more  difficult  to  guarantee  a  respect 
for  the  laws  of  war?  In  regard  to  this  France  was 
reproached  in  1870  with  using  Turcos,  and  England 
with  using  Indian  troops  and  Kaffirs  during  the  South 
African  War.  It  cannot  be  said  positively  that  there 
is  in  this  anything  contrary  to  international  law.  It 
depends  on  the  organization  adopted.  If  a  formation 
•is  determined  by  means  of  elements  from  the  regular 
army  there  will  then  be  all  the  desirable  guaranties 
from  the  standpoint  of  the  laws  of  war.  The  practice 
therefore,  cannot  be  forbidden.  It  is  probable  that 
the  Philippine  Scouts  would  be  considered  as  coming 
within  the  last  mentioned  condition. 

Free  Combatants. -Here  the  difficulties  are 
more  serious  in  that  it  concerns  troops  not  armed  by 
a  state,  but  free  corps,  partisans,  francs-tireurs, 
guerrillas. 

In  so  far  as  regards  "partisans "  we  must  avoid 
misunderstanding  the  term,  which  is  sometimes  used 
in  an  entirely  special  sense  to  indicate  those  detach- 
ments of  the  regular  army  employed,  most  often 
temporarily,  in  carrying  out  a  special  mission.  These 
detachments  have,  therefore,  nothing  in  common 
with  the  partisans  who  are  free  combatants. 

Such  corps  may,  in  a  defensive  war,  render  great 
service,  worrying  the  enemy,  capturing  his  convoys, 
intercepting  his  dispatches,   thanks  to  their  great 


INTERNATIONAL    LAW  TST 

knowledge  of  the  country  and  to  the  willing  assis- 
tance of  the  people.  The  recruitment  of  these  casual 
troops  is  of  a  doubtful  nature;  the  discipline  among 
them  is  feeble.  The  harm  which  such  elusive  com- 
batants do  to  the  regular  troops  of  the  enemy  is 
sometimes  very  great,  producing  in  the  latter  an 
irritation  which  sometimes  takes  the  form  of  violent 
reprisals. 

The  formation  of  these  free  corps  at  the  moment 
of  a  war  will  depend  very  much  on  the  regular  or- 
ganization of  the  country.  It  is  very  clear  that  if  all 
the  live  forces  of  the  country  are  incorporated  in  the 
army,  but  few  elements  will  be  left  for  these  in- 
dependent or  voluntary  formations.  In  the  countries, 
on  the  contrary,  possessing  a  small  regular  army, 
the  free  corps  may  take  on  a  great  importance. 

The  interest  of  the  great  military  powers,  who 
keep  up  large  armies,  is  to  restrict  the  quality  of 
belligerents  to  the  organized  troops.  These  powers 
will  fulfill  most  often  the  role  of  invader,  in  which 
they  will  employ  only  their  regular  troops,  whereas 
the  invaded  people  will  try  to  oppose  to  the  invader 
all  the  live  forces  of  the  country  by  allowing  in- 
dependent volunteers,  urging,  if  necessary,  their 
being  raised  and  their  resistance.  There  is,  there- 
fore, a  very  marked  clash  of  interests  between  the 
greater  and  the  lesser  powers  in  regard  to  this  ques- 
tion; this  opposition  manifested  itself  very  actively 
at  the  Brussels  conference. 

At  The  Hague  they  arrived  at  an  understanding 
which  enabled  them  to  define  the  characteristics 
which  volunteers,  in  the  continental  sense,  must  pre- 
sent in  order  to  be  comprised  among  the  belligerents. 
Articles  9  and  10  of  the  Brussels  project  passed 
almost  literally  into  the  Convention,  being  unani- 
mously adopted  and  constituting  Articles  1  and  2. 


78  FOURTH    LECTURE 

This  convention  imposes  upon  the  volunteers  the 
requirement  that  they  shall  satisfy  the  following 
four  conditions,  in  order  to  be  entitled  to  the  quality 
of  belligerents. 

1.  That  they  shall  be  commanded  by  a  person 
responsible  for  his  subordinates.  The  project  submitted 
to  the  conference  of  1874  went  beyond  this  and  re- 
quired that  they  should  be  in  submission  to  the  chief 
command.  This  condition  is  clearly  desirable,  but 
will  not  always  be  possible.  It  follows  that  at  The 
Hague  Convention  only  those  cases  of  honest  resis- 
tance, which  are  organized  without  keeping  in  touch 
with  the  central  power,  were  considered;  all  that 
was  asked  was  that  such  resistance  should  be  placed 
under  the  direction  of  a  responsible  chief. 

During  the  Franco-German  war  of  1870  the 
French  maintained  a  large  number  of  free  combatant 
bodies.  The  foregoing  conditions  were  generally 
observed  by  them.  This  did  not,  however,  prevent 
the  Germans  from  demanding  of  these  volunteers 
their  authority,  or  their  individual  orders  for  taking 
up  arms.  This  action  has  been  much  criticised,  even 
by  the  German  commentators. 

All  students  of  the  history  of  our  Civil  War  will 
remember  the  confusion  which  obtained  in  regard  to 
the  status  of  various  free  corps  which  fought  for  the 
Confederacy,  and  how  hard  it  was  in  certain  cases 
to  discriminate  between  partisans  who  had  the  true 
authority  of  their  government  and  those  who  were 
merely  bandits.  The  need  of  a  rule  of  differentiation 
was  clearly  apparent,  and  I  for  one  fail  to  see  how 
the  modern  views  of  The  Hague  Convention  are  to  be 
sustained  unless  free  corps  and  the  members  thereof 
be  required  to  identify  themselves  as  coming  properly 
within  the  rules.  Any  one  can  get  together  some- 
thing in  the  nature  of  a  uniform  and  claim  to  be 
attached  to  a  reputable  command. 


INTERNATIONAL    LAW  7ft 

In  considering  the  term  volunteer  as  understood 
by  most  Europeans  we  must  remember  that  it  does 
not  apply  to  the  American  volunteer,  as  the  latter  is 
a  regular  mustered-in  portion  of  the  army.  The 
English  volunteer  is  quite  nearly  akin  to  our  National 
Guardsman  or  member  of  the  organized  militia  in 
that  he  voluntarily  devotes  some  of  his  time  to  drill 
and  military  instruction  without  in  any  way  being 
obliged  to  do  so.  The  English  also  have,  it  may  be 
stated,  a  militia  which  is  an  enlisted  force  existing  in 
time  of  peace  as  well  as  in  time  of  war,  and  subject 
at  all  times  to  the  orders  of  the  Government. 

2.  That  they  shall  carry  arms  openly. 

3.  That  they  shall  have  a  distinctive  emblem 
visible  at  a  distance. 

These  two  conditions  in  reality  form  but  one: 
they  follow  the  same  idea,  that  there  must  be  no 
question  in  regard  to  the  quality  of  the  active  belli- 
gerent. The  distinctive  sign  is  not  necessarily  a 
uniform,  but  it  must  be  sufficiently  determined  and 
visible  to  prevent  the  same  individual  from  passing  in 
an  instant  from  the  role  of  an  active  belligerent  to 
that  of  a  passive  enemy. 

4.  That  they  shall  conduct  their  operations  in 
accordance  with  the  laws  and  customs  of  war.  There 
is  a  grave  criticism  to  be  made  of  this  fourth  con- 
dition which  may  lead  to  misunderstanding.  By 
including  it  among  the  indispensable  characteristics 
for  qualifying  a  belligerent,  we  seem  to  give  the 
right  to  refuse  to  recognize  as  such  a  corps  of 
volunteers  in  which  individual  abuses  might  have 
been  committed.  There  is  no  reason  for  providing 
for  volunteers  a  treatment  different  from  that  which 
is  applied  to  regular  troops;  individual  abuses  should 
only  lead  to  individual  punishment. 


«0  FOURTH    LECTURE 

Volunteers  in  Maritime  War 

Volunteers  are  not  allowed  in  maritime  war  to 
the  same  extent  as  in  war  on  land.  Those  volun- 
teers who  in  the  old  days  were  called  corsairs  (priva- 
teersmen)  played,  nevertheless,  a  glorious  role,  and 
often  exercised  a  great  influence  on  the  conclusion  of 
peace,  particularly  in  the  XVIII  and  early  XIX  cen- 
turies. By  letters  of  marque  from  their  governments 
they  were  authorized  to  pursue  the  enemy  and  so  to 
assist  the  navy;  unfortunately,  the  enterprise  of 
privateersmen  was  not  based  on  entirely  disinterested 
motives,  and  the  spirit  of  lucre  overcame  that  of 
patriotism;  the  prizes  were  allotted  to  the  captors 
after  trial  in  a  prize  court.  At  privateering  ports 
large  fortunes  have  had  for  their  origin  the  products 
of  cruises. 

Privateering  caused  great  difficulties  to  arise 
when  the  right  of  policing  neutrals  was  given  to 
privateersmen,  and  it  was  not  long  after  that  that 
they  deteriorated  in  public  opinion.  During  the 
same  period  a  tendency  towards  respect  for  private 
property  was  becoming  more  marked,  and  pillage 
and  booty  were  abolished  on  land. 

During  the  war  against  Russia  (Crimean  War) 
France  and  England  agreed  not  to  give  out  letters  of 
marque. 

Article  1  of  the  Declaration  of  Paris  of  1856 
abolished  privateering.  On  this  condition  England 
admits  the  principle  that  "The  flag  covers  the  mer- 
chandise." Alone,  the  United  States,  Mexico,  Spain 
and  China  would  not  give  up  privateering.  In  our 
days  privateering  has  almost  entirely  disappeared, 
and  in  the  Spanish-American  conflict  of  1898  the  two 
powers,  which  had  not  signed  the  Declaration  of 
Paris,  nevertheless  decided  that  they  would  not  have 
recourse  to  the  practice. 


INTERNATIONAL    LAW  81 

As  we  have  already  said,  while  the  United  States 
was  unwilling  to  jeopardize  its  position  at  sea  by 
renouncing  the  assistance  of  privateers,  it  was  will- 
ing to  agree  to  a  rule  that  private  property  at  sea 
should  be  respected  as  is  private  property  on  land. 
Had  this  rule  been  accepted,  there  would  be  no  more 
privateering,  as  the  object  of  those  ships  which  carry 
letters  of  marque,  is  to  profit  from  the  captures  they 
make.    Privateersmen  sail  at  their  own  expense. 


FIFTH   LECTURE 


Levees  en  Masse 

>w^HAT  should  be  said  of  levees  en  masse?  The 
\\j  term  has  been  employed  to  qualify  very 
different  conditions  with  the  result  that  the 
same  rule  cannot  apply  to  all  cases. 

Sometimes  it  is  a  general  mobilization,  attempted 
by  a  government  with  the  object  of  procuring  troops 
more  or  less  well  drilled,  but  answering  all  the  re- 
quirements of  international  law  for  the  formation  of 
an  army  regularly  organized.  It  was  under  these 
conditions  that  the  Government  of  the  National  De- 
fense in  France,  on  November  2,  1870,  mobilized  all 
the  available  men  from  21  to  40  years  of  age.  The 
prefects  of  departments  were  charged  with  organ- 
izing them;  their  pay,  their  clothing,  and  arming 
were  provided  for.  It  was,  in  law,  a  true  regular 
army. 

But  a  levee  en  masse  does  not  always  have  this 
character;  it  may  happen  that  spontaneously,  or  on 
the  initiative  of  the  government,  the  entire  population 
rises  and  casts  itself  upon  the  invader  without  having 
had  time  to  organize.  It  was  thus  with  those  who 
revolted  in  the  Spanish  campaigns  against  King 
Joseph.  It  was  the  same  in  Prussia  in  1813,  where 
the  orders  putting  in  movement  the  landsturm  clearly 
indicated  that  it  was  intended  that  it  should  fight  in 
an  irregular  fashion: 

"At  the  approach  of  the  enemy  all  the  inhabi- 
tants should  arm  themselves  and  endeavor  to  damage 
him  by  every  means.* ' 

83 


S4  FIFTH    LECTURE 

Besides  this  it  was  recommended  that  the  in- 
habitants, in  order  to  protect  themselves  more  easily 
from  reprisals  by  the  invader,  should  carry  no  dis- 
tinctive sign.  It  was  only  natural,  therefore,  that 
the  status  of  belligerents  was  refused  them,  since 
they  themselves  repudiated  it,  and  that  they  were  in 
many  cases  executed. 

The  recollection  of  1813  did  not  prevent  the 
Germans  from  showing  themselves  very  severe  in 
1870  in  regard  to  the  franc- tireurs,  who,  however, 
fulfilled  conditions  which  had  not  been  fulfilled  by 
the  landsturm.  At  the  interview  of  Ferrieres, 
Bismark  having  declared  that  the  francs-tireurs 
should  be  treated  as  assassins,  Jules  Favre  recalled 
to  his  recollectton  1813,  and  drew  attention  to  the 
fact  that  in  so  treating  the  Frenchmen  who  had  thus 
openly  defended  their  country  he  was  placing  himself 
beyond  the  law.  Bismark  was  not  very  sensitive  to 
such  appeals. 

The  question  of  levees  en  masse  was  extensively 
considered  at  Brussels  in  1874.  The  small  states, 
exposed  to  invasion,  did  not  wish  to  give  it  up;  and 
England,  having  joined  in  their  views,  the  conference 
failed. 

At  The  Hague  (Art.  2  of  the  Rules  of  the  Con- 
vention) it  was  admitted  that  the  population  of  a 
territory  not  occupied  which,  upon  the  approach  of 
the  enemy,  spontaneously  takes  up  arms  without 
having  had  the  time  to  become  organized  in  accord- 
ance with  Article  1,  shall  be  considered  a  belligerent, 
if  it  carries  arms  openly  and  observes  the  laws  of 
war. 

This  article  certainly  does  not  apply  to  the 
peasant,  who,  between  two  shots,  returns  to  his 
plow,  since  he  acts  with  perfidy.  But  it  does  apply 
to  a  village  which,  on  the  point  of  being  invaded, 
clearly  shows  an  intention  to  defend  itself.      If  the 


INTERNATIONAL    LAW  85 

invader  triumphs  and  captures  the  defenders  without 
uniforms,  he  must  treat  them  as  belligerents.  In 
this  case  circumstances  will  have  been  such  that 
there  was  no  surprise  for  the  invader;  the  laws  and 
customs  of  war  have  been  observed. 

The  case  of  levees  en  masse  in  occupied  territory 
was  not  considered  by  The  Hague  Convention,  be- 
cause the  convention  would  have  run  up  against 
difficulties  which  could  not  have  been  solved.  The 
question,  therefore,  is  not  determined  as  to  this 
particular  case;  but  it  was  with  this  possible  case  in 
view  that  there  was  introduced  into  the  preamble  to 
the  convention  an  appeal  to  the  sentiments  of  justice 
and  humanity  of  belligerents  in  the  hope  of  settling 
all  difficulties  which  the  text  of  the  convention  did 
not  cover. 

In  What  May  Hostilities  Consist? 

May  a  belligerent  employ  every  means  of  offense? 
For  a  long  time  the  true  nature  of  war  has  been 
recognized;  war  is  a  relation  between  state  and  state 
and  not  of  individuals  between  themselves;  its  pur- 
pose is  to  bring  the  adversary  to  terms.  From  this 
it  results  that  one  may  not  do  harm  for  the  sake  of 
harm.  These  principles  had  already  taken  form  in 
the  transactions  of  the  Declaration  of  St.  Petersburg 
of  1868;  it  was  said  therein  that  one  may  not  cause 
unnecessary  suffering  to  the  enemy.  The  Convention 
of  The  Hague  formulates  positively  the  general 
principle  as  well  for  war  on  land  as  for  war  at  sea. 

Belligerents  have  not  an  unlimited  right  in  re- 
gard to  their  choice  of  methods  of  harming  the 
enemy.  The  restrictions  are  based  on  the  two  fol- 
lowing ideas: 

1.  Barbarous  methods  must  be  refrained  from. 

2.  Perfidious  methods  must  be  refrained  from. 


86  FIFTH    LECTURE 

Barbarous  Methods. -Barbarity  is  not  always 
easy  to  distinguish;  the  methods  employed  in  war  are 
in  themselves  barbarous.  Where  shall  we  place  the 
bounds  which  must  not  be  passed?  This  has  been  a 
very  delicate  line  to  determine. 

We  must  consider  as  barbarous  the  use  of  pro- 
jectiles causing  incurable  wounds,  which  are  there- 
fore more  than  sufficient  to  place  the  adversary  hors 
de  combat.  It  must  be  the  same  with  regard  to  en- 
gines which  would  unnecessarily  reach  inoffensive 
persons;  but  this  case  carries  with  it  difficulties 
which  will  be  examined  later  when  we  treat  of  bom- 
bardment. 

The  Declaration  of  St.  Petersburg  of  1868  forbade 
the  use  of  projectiles  weighing  less  than  400  grammes 
(about  14  ounces)  charged  with  explosives,  fulmi- 
nating or  inflammable  materials;  the  limit  of  400 
grammes  excludes  the  question  of  artillery  projectiles. 

This  declaration  is  of  course  obligatory  only  upon 
the  contracting  parties  and  then  only  in  their  recipro- 
cal relations.  A  signatory  state,  as  against  a  non- 
signatory  state,  may,  from  the  standpoint  of  law, 
use  any  explosive  projectiles.  Thus,  when  England 
made  use  of  bullets  which  were  said  to  be  explosive 
against  natives  in  India,  she  may  have  violated  the 
sentiments  of  humanity,  but  she  did  not  violate  the 
Declaration  of  St.  Petersburg. 

The  bullets  employed  by  England,  more  gen- 
erally known  under  the  name  of  dum-dum  (the  name 
of  the  place  of  their  manufacture  near  Calcutta),  are 
projectiles  with  a  leaden  core  covered  with  a  harder 
metal  having  longitudinal  incisions— an  envelope  the 
thickness  of  which  diminishes  as  the  end  of  the  bullet 
is  approached  and  disappears  entirely  at  the  end  (soft 
nose  bullet).  These  bullets,  without  explosive  force 
in  the  sense  of  the  Declaration  of  St.  Petersburg, 
expand  in  the  body,  and  when  they  go  through  the 


INTERNATIONAL    LAW  87 

tissues  cause,  at  the  outlet,  much  graver  wounds 
than  where  they  enter.  The  English  insisted  that 
these  projectiles  were  necessary  for  them  in  India, 
because  ordinary  bullets  of  small  caliber  did  not  have 
sufficient  stopping  power  against  fanatics. 

A  very  lively  discussion  arose  between  the  Rus- 
sian and  English  delegates  in  regard  to  the  question 
of  whether  or  not  these  bullets  were  included  in  the 
Declaration  of  St.  Petersburg.  On  the  recommenda- 
tion of  the  Russians,  The  Hague  Conference  adopted, 
by  a  very  large  majority,  a  supplemental  declaration 
having  for  its  purpose  the  prohibition  of  the  bullets 
in  question.  Neither  England— followed  in  this  by 
Portugal— nor  the  United  States  signed  that  con- 
vention. It  has  been  thought,  and  with  reason,  that 
the  obstinacy  of  Russia  on  this  point  was  unskilful 
from  the  standpoint  both  of  politics  and  of  law. 
From  the  standpoint  of  politics  it  had  the  result  of 
alienating  England  and  of  hurting  its  feelings,  which 
was  regrettable.  From  the  standpoint  of  law  it 
became  impossible  thereafter  to  maintain  that 
expansive  bullets  should  be  considered  as  within  the 
category  of  explosive  projectiles  prohibited  by  the 
Convention  of  St.  Petersburg.  England,  therefore, 
was  no  longer  obliged  to  concern  itself  with  the 
question,  which  before  then  had  obtained,  as  to  the 
legality  of  the  use  of  dum-dum  bullets.  As  it  did  not 
sign  the  convention,  it  had  the  right  in  law  to  use 
them  in  case  of  an  European  war. 

England  had,  however,  very  fortunately,  to  take 
into  account  the  moral  effect  produced  on  public 
opinion  by  these  discussions.  It  abstained  from 
using  expansive  bullets  in  its  war  with  the  Boers. 
Still  better,  it  adhered  with  vehemence  in  1907  to  the 
special  convention  of  1899.  Portugal  imitated  Eng- 
land, with  the  result  that  today  the  United  State* 


88  FIFTH      LECTUR  E 

alone  has  declined  to  join  in  the  prohibition  of  ex- 
pansive bullets. 

The  United  States  was  not  represented  at  St. 
Petersburg  in  1868.  If  at  the  First  Peace  Conference 
at  The  Hague  the  American  delegation  opposed  the 
resolution  proposing  to  prohibit  the  use  of  expanding 
bullets,  it  was  because  the  delegation  believed  that 
the  prohibition  should  be  couched  in  general  terms 
and  not  describe  a  particular  form  of  forbidden  pro- 
jectile, thereby  by  implication  permitting  the  use  of 
others  of  a  different  construction.  General  Crozier, 
our  military  delegate  to  the  First  Peace  Conference, 
offered  to  the  resolution  an  amendment  which  was 
general  in  its  terms  and  which  would  have  ren- 
dered unlawful  the  use  of  any  form  of  expansive  or 
explosive  small  arms  projectile.  The  amendment, 
however,  was  not  accepted. 

The  necessity  for  a  specific  rule  in  regard  to  ex- 
plosive or  expansive  bullets  is  no  longer  apparent 
since  Section  (e)  of  Article  23  of  the  Convention 
of  1907  forbids  the  employment  of  "arms,  projectiles, 
or  material  calculated  to  cause  unnecessary  suffer- 
ing." 

Nevertheless,  in  order  to  take  into  consideration 
the  desire  not  to  limit  the  prohibition  of  explosive 
projectiles  to  those  weighing  less  than  400  grammes, 
the  contracting  parties  reserved  to  themselves  the 
right  to  reach  a  later  understanding  whenever  a  con- 
crete proposition  should  be  formulated  with  a  view  to 
ameliorating  the  methods  of  offense. 

Along  this  line  but  two  declarations,  of  relatively 
small  importance,  were  reached  at  The  Hague,  bear- 
ing on  balloons,  and  on  certain  projectiles. 

Projectiles  Thrown  From  Balloons.— As  to 
balloons,  a  declaration  was  made  under  which  the 
signatory  powers  forbade  themselves,  during  five 
years,  to  discharge  projectiles  or  explosives  from 


INTERNATIONAL    LAW  89 

balloons  (or  from  other  new  craft  of  a  similar  nature) 
on  high.  The  Belgian  delegation  took  the  initiative, 
at  the  conference  of  1907,  in  renewing,  purely  and 
simply,  this  declaration,  which  had  expired  during 
the  year  1906.  England  supported  the  motion,  which 
had  no  other  purpose  in  the  minds  of  its  authors  than 
that  of  giving  scientific  aerostation  time  in  which  to 
develop  in  those  countries  where  it  was  behindhand, 
in  order  that  ultimately  there  might  be  a  discussion 
of  the  question  on  an  equal  footing.  France  objected 
flatly  to  the  Belgian  motion,  laying  stress  on  the 
argument  that  it  is  hard  to  see  why  it  should  be  made 
impossible  to  do  those  things  from  balloons  on  high 
which  the  25th  Article  of  the  convention  of  1899 
allowed  to  be  done  from  the  earth.  Germany  ranged 
itself  with  the  French  opinion,  together  with  six 
other  powers.  Only  29  powers  renewed  the  declara- 
tion of  1899  regarding  balloons. 

Projectiles  Containing  Deleterious  and  As- 
phyxiating Gases. —Another  declaration  was  made 
having  for  its  purpose  to  forbid  the  use  of  projectiles 
of  which  the  sole  purpose  should  be  to  spread  as- 
phyxiating or  deleterious  gases. 

Most  of  the  states  signed  these  two  declarations. 
England  signed  neither  one  nor  the  other,  and  the 
United  States  did  not  sign  the  second.  The  reason 
for  this  second  prohibition  would  seem  to  involve  the 
possibility  of  non-combatants  being  affected. 

Article  22  of  The  Hague  rules  specifies  that  all 
methods  of  injuring  the  enemy  are  not  admissible, 
that  there  are  certain  of  them  which  are  barbarous 
and  perfidious  and  should  not  be  employed.  Aside 
from  those  which  have  already  been  indicated,  we 
may  cite: 

1.  The  refusal  of  quarter. 

2.  Useless  destruction. 


90  FIFTH    LECTURE 

The  Refusal  of  Quarter. -Article  32  of  the 
rules  of  The  Hague  declares  improper  a  refusal  to 
grant  quarter.  When  an  enemy  has  laid  down  his 
arms,  has  surrendered  at  discretion,  or  has  been 
placed  by  a  wound  in  a  condition  making  it  impossible 
for  him  to  continue  the  struggle,  the  war,  in  so  far 
as  he  is  concerned,  has  reached  its  object;  it  is  then 
no  longer  permissible  to  take  other  measures  than 
those  necessary  to  prevent  his  further  participation 
in  the  hostilities. 

The  refusal  to  grant  quarter  is  not  rendered 
justifiable  by  a  declaration  made  in  advance  that  one 
will  not  ask  quarter  for  one  self.  There  is  in  history 
many  a  recollection  of  barbarous  measures  ordered 
by  the  public  authorities.  It  is  to  be  remarked  in 
this  regard  that  civil  authority  has  often  shown  itself 
more  cruel  than  military  authority.  Thus,  the 
French  Convention  decided  several  times  that  no 
more  Spanish  prisoners  should  be  taken;  this  decree 
was  adopted,  but,  it  may  be  said,  never  executed, 
the  generals  having  refused  to  obey  it. 

Are  there  cases  where  one  has  the  right  to  kill  a 
defenseless  enemy— to  put  to  death  prisoners?  We 
may  remark  that  there  might  be  aggravating  cir- 
cumstances—perfidy, if  they  have  been  promised 
their  lives.  We  are  not  here  concerned,  of  course, 
with  escaping  prisoners  or  with  those  who  have  com- 
mitted murder,  but  with  those  who  cannot  be  guarded. 
It  is  thus  that  Napoleon,  after  the  taking  of  Jaffa, 
caused  to  be  massacred  several  thousand  prisoners 
to  whom,  perhaps,  their  lives  had  been  promised, 
but  who  he  could  neither  guard  nor  subsist,  who  he 
could  not  return  to  Egypt,  and  who  he  did  not  desire 
to  return  to  the  ranks  of  the  army  which  he  was 
fighting. 

During  the  war  in  the  Transvaal  the  Boers  often 
captured  detachments  of  English  which  they  sent 


INTERNATIONAL    LAW  91 

back  without  requiring  anything  of  them.  One  can 
not  send  back  a  man  and  say  to  him,  for  example, 
"I  forbid  you,  under  the  pain  of  death,  to  carry 
arms  against  me  again,"  for  the  granting  of  free- 
dom is  an  agreement  which  contemplates  the  free 
will  of  both  parties.  Besides,  the  Boers,  while  acting 
in  a  very  humane  manner,  were  also  acting  in  a  very 
wise  one,  since,  evidently,  surrenders  would  have 
been  less  frequent  if  soldiers  had  been  convinced 
that  by  surrendering  they  were  going  to  their  deaths. 

One  must  not  do  harm  for  the  sake  of  harm,  but 
limit  it  to  that  alone  which  is  necessary  to  reach  the 
goal,  and  it  is,  therefore,  only  in  very  exceptional 
cases  that  we  may  conceive  a  right  to  put  prisoners 
to  death. 

Useless  Destruction.  -One  must  also  forbid  the 
useless  destruction  of  property.  There  are  many 
kinds  of  destruction  entirely  proper  in  war,  but  it  is 
forbidden  to  ravage  for  the  sake  of  ravaging,  as 
Louvois  caused  to  be  done  in  the  Palatine  (destruction 
of  the  castle  of  Heidelberg,  etc.).  The  rules  of  The 
Hague  (Art.  23)  contain  positive  requirements  in  re- 
gard to  this. 

Siege  Warfare 

In  siege  warfare  the  methods  of  destruction  are 
particularly  energetic  and  may  give  rise  to  difficulties 
in  theory;  it  is  here  that  the  most  violent  means  of 
coercion  are  put  to  work.  The  Hague  Convention 
devotes  several  articles  to  it. 

What  Cities  May  be  Attacked.— In  olden  times 
a  difference  was  made  between  fortified  and  open 
places.  It  is  better  to  distinguish  between  cities 
which  defend  themselves,  and  those  which  do  not  de- 
fend themselves.  Any  city  which  defends  itself, 
even  though  it  be  an  open  one,  may  be  attacked ;  but 
one  may  only  take  possession  of  a  city  which  does 


92  FIFTH    LECTURE 

not  defend  itself,  without  having  the  right  to  employ 
against  it  violent  methods. 

Article  25  of  The  Hague  rules  of  1907,  prohibits 
the  attack  or  bombardment  by  any  means  which  may 
be,  of  cities  or  villages  which  are  not  defended.  The 
addition,  in  1907,  of  the  words  "by  any  means  which 
may  be"  was  made  as  the  result  of  the  demands  of 
the  French  delegation  and  was  intended  to  make  up, 
to  a  certain  extent,  for  the  refusal  by  France  to  re- 
new the  five-year  declaration  of  1899  forbidding  the 
discharge  of  projectiles  from  balloons. 

In  1870  France  was  hotly  critized  by  the  Germans 
in  regard  to  the  bombardment  of  Sarrebrticken,  Au- 
gust 2d,  and  of  Kehl  by  the  defenders  of  Strasburg. 
Since  then,  the  Germans  have  recognized  the  grounds 
for  these  two  operations  as  proper,  Sarrebrticken 
being  already  occupied  by  them  on  August  2d,  and 
Kehl  offering,  for  their  attack  on  Strasburg,  an  ex- 
cellent cover. 

At  The  Hague,  in  1899,  a  lively  discussion  was 
entered  into  on  the  proposal  of  the  Belgian  delega- 
tion to  forbid  the  bombardment  of  commercial  ports. 
As  a  result  of  the  remarks  of  the  Italian  delegation 
the  question  was  set  aside  as  pertaining  to  maritime 
war,  and  a  "voeu"  only  was  expressed  (the  6th), 
which  was  considered  by  the  conference  of  1907. 

The  examination  which  was  undertaken  by  this 
latter  conference  showed  the  question  to  be  a  com- 
plex one.  No  absolute  principles  may  be  laid  down 
in  regard  to  it;  there  are  cases  where  the  bombard- 
ment of  a  commercial  port  cannot  be  admitted,  as, 
for  example,  in  the  coastwise  war  ("au  littoral") 
advocated  by  certain  sailors,  who  would  hold  the 
ports  for  ransom.  But  there  may  be  a  real  military 
advantage  in  destroying  a  station,  an  embarking 
place,  an  arsenal  or  a  factory.  From  another  point 
of  view  a  fleet  may  require  coal  or  supplies,  and  would 


INTERNATIONAL    LAW  93 

not  the  only  authority  for  such  a  requisition  be  a 
threat  of  bombardment?  In  recent  naval  maneuvers 
the  fleets  have  acted  as  though  the  bombardment  of 
commercial  ports  was  permissible;  the  English  have 
even  looked  upon  it  as  a  means  of  bringing  a  port  to 
ransom.  In  1870  France  did  not  make  use  of  the 
methods  of  a  coastwise  war. 

In  1907,  after  much  discussion,  The  Hague  con- 
ference elaborated  a  convention  (No.  IX)  which  de- 
termines the  question.  Art.  4  forbids  the  bombard- 
ment, because  of  the  nonpayment  of  money  contri- 
butions, of  ports,  cities,  villages,  habitations  or  un- 
defended vessels.  Military  and  naval  establishments 
and  vessels  of  war  which  may  be  found  in  commercial 
ports  are  outside  of  the  convention. 

The  rules  therefore,  must  be  adapted  to  the  cir- 
cumstances in  which  one  finds  oneself.  A  fleet  not 
being  able  to  land  for  the  purpose  of  occupation 
should  in  certain  cases  be  allowed  to  destroy. 

Methods  of  Reducing  a  City 

The  means  which  are  employed  are: 

1.  Investment. 

2.  Bombardment. 

3.  Assault. 

Investment.  —The  investment  maybe  partial  or 
complete;  but  in  that  portion  which  the  besieger  com- 
mands he  may  enforce  his  orders  and  justify  them. 

It  is  necessary  to  draw  a  distinction  between  a 
land  investment  and  a  naval  blockade.  While  the 
first  may  be,  to  all  intents  and  purposes,  absolute, 
the  second  will  be  fictitious  over  the  greater  part  of 
the  line.  Command  at  sea  is,  as  a  matter  of  fact, 
less  effective  than  on  land;  from  this  results  a  differ- 
ence in  the  methods  which  are  sanctioned.  Thus, 
while  the  land  besieger  may  put  into  effect  such  pen- 
alties as  may  seem  proper  to  him,  against  those  who 


M  FIFTH    LECTURE 

endeavor  to  cross  his  lines,  the  belligerent  blockad- 
ing a  port  may  only  confiscate  the  vessels  which  seek 
to  force  the  the  blockade,  without  being  able  to  pun- 
ish their  crews. 

In  regard  to  an  investment  two  questions  present 
themslves: 

1.  The  besieged  may  have  a  number  of  women, 
children,  old  men  and  wounded;  he  is  unquestionably 
interested  in  getting  rid  of  them.  May  he  require 
from  the  besieger  that  they  be  allowed  to  pass? 

At  The  Hague  they  did  not  consider  this  case. 
No  rule  can  be  established,  and  the  question  cannot 
be  solved  in  advance.  Useless  mouths  are  a  cause  of 
weakness,  both  moral  and  material,  and  it  seems 
proper  that  a  besieger  may  refuse  passage  to  them. 
It  is  a  matter  of  consideration,  and  of  humanity,  of 
which  he  must  be  the  sole  judge.  In  case  of  the  be- 
sieger's refusal,  the  commander  of  the  place  must 
keep  these  useless  mouths,  no  matter  what  may  the 
embarrassment  which  they  cause  him  or  the  diminu- 
tion in  resistance  which  they  may  impose  on  the  be- 
sieged place. 

From  another  point  of  view,  it  is  certain  that  the 
besieger  may  make  a  choice  of  the  persons  whom  he 
is  willing  to  allow  to  pass.  A  misunderstanding  re- 
sulted from  an  article  of  the  convention  of  Geneva  of 
1864,  which  stated  that:  "Evacuations,  with  the  per- 
sonnel which  protects  them,  should  enjoy  absolute 
neutrality. ' '  The  convention  of  Geneva  of  1906  caused 
this  mistake  to  be  rectified  by  admitting  that  a  con- 
voy of  evacuation  encountered  by  the  enemy  is  a 
1  'good  capture. "  (This  has  relation  to  the  evacuation 
of  the  wounded.) 

2.  During  the  siege  of  Paris  there  remained  in 
the  capital  a  diplomatic  corps,  which  asked  that  on 
certain  days  it  should  be  permitted  to  send  out  mail. 
Bismark  allowed  only  open  dispatches  to  pass;  the 


m 


INTERNATIONAL     LAW  »5 

diplomatic  agents  protested.  This  protest  was  not 
well  founded,  because  there  may  be  an  absolute  nec- 
essity for  the  besieger  not  to  allow  communication 
with  the  outside  to  be  established  even  under  diplo- 
matic cover.  Alone,  the  diplomatic  agents  of  the 
United  States  were  exempt  from  this  measure  of  sus- 
picion, since  they  were  charged  with  the  German  in- 
terests in  France. 

Bombardment.  -In  other  days  the  efforts  of  the 
assailant  were  directed  against  the  fortifications,  the 
object  being  to  make  a  practicable  breach  which  would 
render  assault  possible.  The  progress  of  ballistics 
now  permitting  a  more  distant  fire,  fortifications  to- 
day are  but  little  attacked,  and  an  effort  is  made  to 
force  the  town  to  surrender  of  its  own  motion  as  the 
result  of  the  development  of  artillery  fire.  Assault 
has  been  abandoned  except  as  an  unusual  means,  and 
the  less  perilous  procedure  of  bombarding  the  interior 
of  the  place  is  employed. 

Is  this  unlawful?  It  has  been  so  held  in  France 
because  of  the  effect  on  inoffensive  inhabitants. 
General  Faidherbe  wrought  himself  up  very  much 
against  the  effects  which  the  Germans  expected  from 
the  bombardment  of  the  city  of  Paris,  that  is,  the 
pressure  brought  by  the  population  on  the  governor 
to  obtain  the  surrender  of  the  place. 

Is  this  pressure  immoral  or  condemnable?  It 
would  seem  not.  It  would  be  going  very  far  to  say 
that  projectiles  may  not  be  thrown  to  the  interior  of 
a  city,  since  to  so  hold  would  serve  to  establish  a  place 
of  repose  and  of  shelter  for  troops.  Besides,  in  mod- 
ern war  it  is  not  of  the  troops  alone  that  we  must  de- 
mand courage;  it  is  also  of  the  civil  population,  which 
should  be  firmly  persuaded  that  it  is  taking  part  in 
the  war  and  that  its  attitude  has  an  influence  on  the 
resistance. 


96  FIFTH    LECTURE 

In  the  French  general  instructions  for  siege  oper- 
ations, it  is  said: 

1  'That  bombardment  consists  in  covering  the  place 
with  projectiles  as  a  whole  or  in  part,  for  the  purpose 
of  ruining  public  edifices  and  to  bring  the  governor 
to  capitulate  by  intimidation  or  pressure  from  the 
population."    (1st  part  Art.  6) 

The  French  have,  therefore,  made  their  own,  the 
ideas  which  they  repudiated  in  1870. 

Must  bombardment  be  preceded,  necessarily  by 
notice?  This  notice  has  a  double  purpose.  First,  to 
make  known  to  the  city  the  risk  which  it  is  running 
and  perhaps  to  bring  about  an  immediate  surrender 
if  it  does  not  desire  to  accept  the  danger;  and  second, 
and  this  is  its  true  purpose  above  all,  to  permit  the 
inoffensive  portion  of  the  population  to  place  itself 
under  shelter. 

In  olden  times  notice  was  given  by  a  summons  to 
surrender,  after  which,  with  a  delay  of  a  few  hours, 
bombardment  began. 

In  1871  several  towns  received  a  preliminary 
notice,  but  Paris  did  not  receive  the  benefit  of  one. 

In  principle,  the  notice  should  be  given,  but  it 
may  be  necessary  to  act  suddenly.  The  German 
Manual  of  International  Law,  published  under  the 
name  of  "Laws  of  Continental  War,"  lays  down  the 
rule  that  no  notice  should  be  given.  But  the  principle 
of  notice  is  found  set  forth  in  the  convention  of  1907. 
Article  26  of  the  rules  says  that: 

"The  officer  in  command  of  an  attacking  force 
must,  before  commencing  bombardment,  except  in 
cases  of  assault,  do  all  in  his  power  to  warn  the  au- 
thorities." 

The  words  of  the  French  text  of  the  Convention 
are  "attaque  de  vive  force."  Due  to  the  poverty 
of  our  language  this  has  been  officially  translated 
"assault,"  giving,  I  believe,  an  entire  misconception 


♦ 


INTERNATIONAL    LAW  97 

of  the  meaning.  Our  general  idea  of  a  bombardment, 
in  connection  with  an  assault,  is  one  carrying  prepa- 
ration, when,  clearly,  notice  may  be  given.  The  idea 
of  The  Hague  text  is  that  where  artillery  fire  is  di- 
rected on  a  town  suddenly  as,  for  instance,  where  an 
attack  which  has  started  outside  the  town  is  followed 
up,  no  notice  is  required.  This  view  has  the  advan- 
tage of  making  common  sense  out  of  the  paragraph. 

There  are  restrictions  in  regard  to  the  scope  of 
objectives  in  a  bombardment.  Certain  of  these  re- 
strictions result  from  the  conventions  of  Geneva  (1864 
and  1906)  and  hospital  edifices,  marked  by  the  Red 
Cross  insignia  are  to  be  respected.  Article  27  of  the 
rules  of  The  Hague  has  elaborated  the  principle  by 
protecting  edifices  consecrated  to  worship,  to  science, 
to  the  arts,  charitable  institutions,  and  places  where 
the  sick  and  wounded  are  congregated  on  condition 
that  they  shall  not  be  employed  for  a  military  pur- 
pose. It  follows,  as  a  consequence,  that  everything 
which  is  outside  this  list,  including  private  habita- 
tions, may  be  bombarded. 

The  article  (Number  27)  also  adds  to  the  list  of  edi- 
fices to  be  protected  as  much  as  possible,  historical 
monuments,  and  makes  it  the  duty  of  the  besieged  to 
mark  these  edifices  by  a  distinctive,  visible,  special 
and  unique  sign,  and  to  notify  officially  the  besieger 
thereof.  It  has  been  impossible  to  agree  as  to  this 
sign;  one  of  those  which  was  adopted,  in  so  far  as  re- 
gards maritime  warfare  (bombardment  of  coasts), 
consists  in  large  rectangular  panels  divided  by  a  diag- 
onal line  into  two  triangles  of  different  colors  (black 
above  and  white  beneath). 

The  protected  edifices  must  not  be  employed  for 
a  military  purpose;  this  last  condition  is  necessary. 
The  Germans,  in  1870,  were  reproached  with  the 
destruction  of  the  spire  of  Strasburg  cathedral;  this 
action  would  have  been  justified  if  it  were  true  as 


98  FIFTH    LECTURE 

alleged  that  the  spire  served  as  an  observation  point 
for  the  besieged.  It  would  clearly  be  perfidious  to 
indicate  to  the  enemy,  as  a  monument  to  be  respected, 
one  in  which  an  observation  station  was  established, 
or,  for  example,  to  cover  by  the  Geneva  cross  a 
powder  magazine;  and  it  might  be  said  that  such  an 
act  would  constitute  a  violation  of  a  pledged  word. 

In  this  regard,  in  1870,  there  were  frequent 
recriminations  which  do  not  seem  to  have  been  justi- 
fied. There  may  have  been  many  errors,  but  it  does 
not  appear  that,  systematically,  hospitals  were  fired 
upon. 

Taking  by  Assault— Pillage. —There  is  one 
particular  situation  to  be  considered— in  olden  times 
a  frequent  one,  a  rare  one  today— that  of  capture  by 
assault.  It  has  happened  (even  during  the  wars  of 
the  Revolution  and  of  the  Empire)  that  a  city  has 
been  notified  that  if  its  resistance  demanded  an 
assault  the  garrison  would  be  put  to  the  sword  and 
the  town  turned  over  to  pillage.  It  was  considered 
legitimate  that  such  extreme  measures  should  be 
taken  and  that  a  town  captured  by  assault  should  lie 
at  the  discretion  of  the  conqueror.  In  a  spirit  of 
vengeance  or  of  cupidity  the  garrison  was  decimated 
and  the  town  abandoned  to  pillage  for  a  certain 
period  of  time. 

These  barbaric  means  are  today  prohibited.  The 
besieger  may  not  be  the  judge  of  the  resistance  to 
be  offered  by  the  besieged,  whose  strict  duty  it  is  to 
prolong  the  struggle  as  much  as  possible. 

In  the  course  of  recent  wars,  but  few  towns 
have  been  taken  by  assault.  In  any  case,  Article  28 
of  the  rules  of  The  Hague  forbids  the  turning  over 
to  pillage  of  a  town,  even  when  it  has  been  so  taken. 
In  so  far  as  concerns  the  garrison,  it  seems  un- 
necessary to  state  that  it  should  never  be  massacred 
or  decimated,  even  in  the  case  of  a  surrender  without 


INTERNATIONAL    LAW  99 

conditions  or  of  an  attack  by  assault,  of  this  the 
advance  in  manners  and  customs  being  a  sufficient 
guaranty. 

Of  Methods  Construed  as  Perfidious 

Over  and.  above  the  methods  called  barbarous, 
belligerents  may  not  employ  certain  other  methods 
called  perfidious,  since  these  are  forbidden  by  honor. 

If  it  is  difficult  to  classify  the  different  methods 
considered  barbarous,  the  actions  of  belligerents 
always  implying  a  certain  cruelty,  it  would  seem  that 
in  regard  to  perfidious  methods  the  line  of  demarca- 
tion is  sharper. 

We  may  classify  perfidious  methods  in  two 
categories: 

1.  Acts  criminal  in  themselves. 

2.  Acts  which  constitute  violations  of  a  plighted 
word,  or  of  conventions  expressed  or  implied. 

Assassination  and  the  encouragement  of 
assassination  are  acts  in  themselves  criminal. 
Their  prohibition  has  been  sharply  specified  by  Article 
23-b  of  The  Hague  rules,  which  stipulates  that  it  is 
particularly  forbidden  "to  kill  or  wound  treacher- 
ously individuals  belonging  to  the  hostile  nation  or 
army." 

Thus,  if  a  person  should  present  himself  to  an 
enemy  officer,  hand  him  a  dispatch,  and  stab  him 
while  he  was  reading  it,  he  would  be  committing  an 
actual  crime.  By  the  application  of  the  same  idea, 
the  placing  a  price  on  the  head  of  an  enemy,  which 
is  after  all  but  an  invitation  to  assassination,  is 
forbidden. 

We  must  insist  upon  this  point,  because  this 
procedure  used  to  be  employed.  We  have  seen  Na- 
poleon place  a  price  upon  the  head  of  the  Prussian 
Major  Schill,  and  the  allies,  a  little  later,  place  a 
price  upon  Napoleon's  head.  Since  that  time  this 
practice  seemed  entirely  abandoned,  when  in  1884 


100  FIFTH    LECTURE 

Admiral  Hewett,  of  the  British  navy,  placed  a  price 
upon  the  head  of  Osman-Digma,  his  adversary,  whom 
he  accused  of  attacking  persons  bearing  a  flag  of 
truce.  His  act  was  generally  condemned,  even  in 
England;  and  following  a  question  in  the  House  of 
Commons,  the  English  government  disavowed  the 
admiral,  while  at  the  same  time  endeavoring  to  show, 
on  his  behalf,  exculpating  circumstances. 

An  assassin  may  not  be  held  innocent  because 
of  the  political  character  which  he  may  assume.  In 
particular,  extradition  may  not  be  refused  when  an 
attempt  against  a  sovereign  takes  on  the  character 
of  a  common  law  offense,  a  true  assassination. 

Insurrection. —May  one  provoke  political 
crimes,  such  as  insurrection  or  treason? 

Under  many  circumstances  it  would  be  possible 
to  stir  up  an  insurrectionary  movement  among  a 
people  more  or  less  under  the  power  of  one  of  the 
belligerents  (Poland,  Alsace-Lorraine,  etc.).  Of  this 
history  offers  us  quite  a  number  of  examples.  Eng- 
land, in  its  various  wars,  has  gone  through  insur- 
rections in  Ireland  and  India.  In  1866  the  Prussians 
tried  to  organize  a  Hungarian  legion  against  Austria. 

This  method  of  procedure  was  particularly  em- 
ployed in  the  XVIII  and  in  the  beginning  of  the  XIX 
centuries  in  the  various  struggles  against  Turkey, 
because  of  the  peculiar  situation  of  that  country, 
which,  not  having  attached  to  itself  the  conquered 
populations,  is,  after  a  fashion,  camped  on  its  posses- 
sions. It  seems  proper  to  mention  particularly  the 
efforts  made  in  1770  and  1877-78,  to  provoke  an  up- 
rising among  the  Christian  populations.  Finally,  at 
the  beginning  of  the  South  African  war,  England, 
which  claimed  the  right  of  suzerainty  over  the 
Transvaal,  addressed  itself  to  the  population  and 
called  upon  it  not  to  respond  to  the  call  of  the  Trans- 
vaal government.      A  Boer  general  answered  this 


INTERNATION  A  IT  L  A  W  '101 

declaration  by  proclaiming,  in  his  turn,  that  every 
Boer  of  the  Transvaal  who  obeyed  England  would  be 
shot  and  by  endeavoring  to  stir  up  the  population  of 
the  Cape  Colony. 

These  are  dangerous  methods,  which  should  be 
resorted  to  only  in  the  last  extremity.  Their  em- 
ployment cannot  be  considered  improper,  since  it  is 
often  very  difficult  to  distinguish  between  a  case  in 
which  one  has  aroused  an  insurrection  and  one  in 
which  one  has  only  profited  thereby.  But  in  bring- 
ing on  a  rebellion  one  exposes  the  insurgents  to  the 
later  vengeance  of  their  sovereign;  and  it  is  not  en- 
tirely certain  that  a  belligerent  could,  the  case 
arising,  protect  them  against  its  adversary. 

Treason. — We  can  more  readily  understand  the 
exciting  to  individual  crimes  and  to  acts  of  treason. 
We  must  consider  the  propriety  of  this  means  from 
two  points  of  view;  from  the  moral  point  of  view, 
and  from  the  practical  point  of  view. 

From  the  moral  point  of  view  there  is  no  doubt 
that  it  is  blameworthy  to  have  recourse  to  corruption. 

From  the  practical  standpoint  it  must  be  ad- 
mitted that  the  secret  funds  placed  by  various  states 
at  the  disposal  of  their  foreign  ministers  and  their 
ministers  of  war,  show  clearly  that  every  government 
has  recourse  to  this  method.  One  may  not  there- 
fore renounce  the  method  for  oneself  without  running 
the  risk  of  placing  oneself  voluntarily  in  a  position 
of  inferiority  towards  future  adversaries. 

Of  Ruses.— If  perfidy  is  to  be  condemned,  ruse 
is  admissible.  Art.  24  of  the  rules  of  The  Hague 
reads  as  follows: 

4 'Ruses  of  war  and  the  employment  of  measures 
necessary  for  obtaining  information  about  the  enemy 
and  the  country  are  considered  permissible.' ' 

We  are  therefore  interested  in  distinguishing 
forbidden  perfidy  from  permitted  ruse. 


10&  •   -  '  •'       F'IFffl'LECTURE 

We  may  say  that  there  is  perfidy  every  time 
there  is  a  violation  of  a  pledged  word  (expressed  or 
tacit)  of  a  convention,  or  of  a  recognized  tradition. 

Thus,  to  use  the  insignia  of  the  Geneva  conven- 
tion to  enable  a  train  of  ammunition  to  pass  in  the 
neighborhood  of  the  enemy,  to  raise  that  insignia  on 
buildings  sheltering  troops,  or  over  a  depot  of  muni- 
tions, or  to  have  spying  done  by  persons  in  the  sani- 
tary service,  are  perfidious  methods.  There  is  a 
breaking  of  a  word  pledged,  since  the  insignia  would 
thus  be  deflected  from  its  employment  in  the  interests 
of  humanity  and  from  its  charitable  purpose.  In  the 
same  way  in  case  of  a  truce,  to  reopen  hostilities 
before  the  expiration  of  the  time  agreed  upon  would 
be  perfidious. 

Similarly,  an  abuse  of  a  flag  of  truce.  The  fact 
of  raising  the  butt  of  the  rifle  in  the  air,  to  indicate 
that  one  has  surrendered,  and  then  to  meet  the  enemy 
with  a  point  blank  volley  when  he  advances,  are  per- 
fidious acts;  this  does  not  constitute  a  violation  of  a 
word  expressly  given,  but  of  a  usage,  generally  ad- 
mitted, which  indicates  that  it  was  the  intention  to 
stop  the  fight,  to  surrender.  It  is,  therefore,  an 
act  of  perfidy,  and  not  a  ruse. 

The  Use  of  the  Enemy's  Uniforms  and 
Flags. — For  a  long  time  this  was  in  question.  There 
was  here  no  convention  either  expressed  or  implied. 
Particularly,  nothing  forbade  the  use  of  the  enemy's 
uniforms.  But  this  dissimulation  was  required  to 
cease  from  the  moment  the  combat  became  engaged. 
There  was  a  tendency  to  consider  the  practice  im- 
proper; a  tendency,  by  the  way,  accentuated  by  some 
military  regulations.  The  question  was  one  which 
demanded  definite  settlement. 

The  Hague  rules  cut  short  all  discussion  on  this 
point.  Art.  23-f  provides  that  it  is  forbidden  "To 
make  improper  use  of  a  flag  of  truce,   or  of  the 


INTERNATIONAL    LAW  103 

national  flag,  or  of  the  military  insignia  and  uniform 
of  the  enemy,  as  well  as  the  distinctive  badges  of 
the  Geneva  Convention." 

On  this  point  it  is  proper  to  note  a  difference  be- 
tween war  on  land  and  war  at  sea.  Maritime  regu- 
lations authorize  ships  to  navigate  under  the  enemy's 
flag,  but  forbid  their  fighting  under  that  emblem. 
At  the  moment  of  combat  they  must  raise  the 
national  flag.  Besides,  the  flag  indicates  nationality 
only  if  it  is  sustained,  at  the  moment  of  being  hoisted, 
by  a  shot  called  a  "coup  d'assurance;"  and  until 
that  shot  is  fired  it  may  be  considered  that  there  has 
been  simply  a  ruse.  This  "coup  d'assurance"  is  like 
a  word  of  honor  given  by  the  commander,  that  the 
flag  properly  indicates  his  nationality.  We  may  re- 
mark that  while  it  is  easy  for  a  vessel  to  change  its 
flag  rapidly  at  the  desired  moment,  troops,  on  the 
other  hand,  can  not  change  their  uniform  on  the 
battlefield.  The  restriction,  mentioned  above  had, 
therefore,  in  war  on  land  no  practical  use. 

Calls  and  Countersign  of  the  Enemy.— May 
one  deceive  the  enemy  by  imitating  his  calls?  The 
question  is  not  considered  by  The  Hague  rules.  This 
ruse  was  frequently  employed  by  the  Germans  in 
1870.     The  method  is  unquestionably  a  proper  one. 

The  use  of  the  enemy's  countersign  and  pass- 
words is  also  admissible.  • 

In  these  two  cases  there  is  no  reason  for  estab- 
lishing a  distinction,  as  certain  authors  do,  as  to 
whether  the  knowledge  of  the  calls  or  of  the  counter- 
sign has  been  obtained  by  treason  or  otherwise. 

The  Spreading  of  False  News.— This  is  a  per- 
fectly proper  ruse  of  war,  and  may  be  an  excellent 
method  of  action  towards  an  impressionable  people, 
who  might  be  discouraged  by  false  news.  One  may 
either  allow  messengers  to  be  captured,  or  print 
newspapers,  or  circulate  spurious  editions  of  the 
enemy's  newspapers. 


104  FIFTH    LECTURE 

The  Germans,  in  1870,  had  frequent  recourse  to 
this  method.  I  believe  that  there  are  instances  of 
its  use  during  our  civil  war.  It  is  legitimate 
when  one  does  not  assume  responsibility  for  the 
false  news.  This  ruse,  however,  would  cease  to  be 
proper  if  the  enemy  which  spreads  the  news  should 
directly  and  solemnly  assume  responsibility  therefor. 
Such  would  be  the  case  of  a  belligerent  who,  to 
cause  the  other  to  surrender,  should  furnish  him  with 
false  newspapers  which  he  affirmed  to  be  authentic. 
This,  by  the  way,  would  not  excuse  the  enemy's 
chief  who,  through  this  perfidy,  should  be  led  into  an 
act  of  weakness.  (A  good  illustration  in  regard  to 
caution  in  this  regard  was  shown  by  the  Spanish 
commander  at  the  siege  of  Baler,  P.  I.) 

It  is  for  this  reason  that  we  must  condemn  the 
artifice  employed  by  Marshals  Lannes  and  Murat  in 
1809,  who,  in  order  to  seize  the  bridges  of  Vienna, 
falsely  assured  the  Prince  of  Auesperg,  who  was 
charged  with  their  defense,  that  an  armistice  had 
been  concluded. 

On  the  other  hand,  for  the  bearer  of  a  flag  of 
truce  voluntarily  to  forget  in  the  enemy's  camp 
papers  setting  forth  false  news,  would  be  a  proper 
ruse.  It  may  readily  be  understood  that  when  an 
officer  is  charged  with  the  mission  of  negotiating  a 
capitulation  there  is  for  him  an  entire  scale  of  shades 
between  a  clever  dissimulation  and  a  shameless  lie. 

(It  will  be  observed  that  throughout  these  lectures 
I  have  used  many  illustrations  taken  from  the  Franco- 
German  war  of  1870-71.  That  war  took  place  more 
than  40  years  ago  under  conditions  which  permitted 
full  light  to  shine  on  its  incidents,  and  all  the  con- 
troversial points  have  been  so  fully  discussed  by  the 
eminent  jurists  of  both  nations  as  to  render  the  con- 
flict an  ideal  one  to  illustrate  the  various  phases  and 
views  of  the  laws  of  war. ) 


SIXTH  LECTURE 


Espionage 

^^HE  24th  Article  of  the  rules  of  The  Hague 
^^  considers  the  necessary  methods  of  procuring 
knowledge  of  the  enemy  or  of  the  terrain  as 
being  closely  akin  to  ruses  of  war.  These  methods 
come  within  the  category  of  espionage. 

The  following  fundamental  distinction  should  be 
drawn  in  regard  to  spies:  A  spy  may  be,  when  he 
acts  in  the  interests  of  his  country,  an  estimable 
man,  and  even  a  hero.  Such  was  the  case,  in  the 
Russo-Japanese  war,  of  the  Japanese  officers  who 
penetrated  within  the  enemy's  lines  to  obtain  in- 
formation or  to  blow  up  bridges,  and  who,  having 
been  captured,  died  with  the  greatest  courage.  The 
Russians  were  authorized  to  execute  them  as  a  right 
of  legitimate  defense,  but  not  because  the  acts  of 
which  they  were  accused  involved  moral  turpitude. 
From  a  moral  point  of  view  we  cannot  treat  such 
brave  men  with  the  contempt  which  generally  at- 
taches to  one  termed  a  spy.  There  would  be  a  true 
crime,  however,  in  a  case  where  espionage  was  prac- 
ticed by  the  subjects  of  a  country  to  the  detriment 
of  their  own  nation. 

We  must,  therefore,  consider  two  basic  cases: 

1.  The  case  where  the  spy  in  his  actions  does 
not  fail  in  any  duty  of  patriotism;  where  he  serves 
his  country.  There  is  then  but  a  non-criminal  act  of 
war. 

2.  The  case  where  the  spy  commits  acts  of  in- 
fidelity against  his  own  nation;  he  then  commits  a 
criminal  act— he  betrays  his  country. 

105 


\ 


106  SIXTH    LECTURE 

In  the  treatment  and  punishment  of  spies,  no 
consideration  would  appear  to  have  been  given  to 
this  distinction,  and  while  the  moral  standing  of  a 
spy  who  sacrifices  himself  for  the  good  of  his  country 
and  of  the  spy  who  betrays  his  country  are  actually 
as  different  as  day  from  night,  in  the  eye  of  the  law 
no  difference  is  to  be  made.  It  is  probably  that  pure 
reason  suggests  that  the  traitor  should  be  hanged  as 
a  punishment  and  that  the  enemy  spy  should  be 
hanged  for  the  effect  in  terror  em. 

From  the  standpoint  of  the  laws  of  war,  the 
characteristics  of  a  spy  must  be  determined,  because 
he  will  have  no  right  to  be  treated  as  a  prisoner  of 
war.  The  spy  is  not  always  a  despicable  person— but 
he  is  always  dangerous. 

The  Characteristic  of  Espionage  is  Dis- 
simulation. —Thus  officers  and  soldiers  are  sent  out 
on  reconnaissance  with  the  duty  of  collecting  in- 
formation in  regard  to  the  enemy;  if  they  go  openly, 
in  uniform,  they  may  be  fired  upon  or  captured,  but 
they  may  not  be  treated  as  spies;  if,  on  the  con- 
trary, they  are  disguised,  the  dissimulation  practiced 
authorizes  the  belligerent  who  captures  them  to  try 
them  as  spies. 

This  distinction  is  clearly  established  by  Article 
29  of  The  Hague  rules,  which  reads  as  follows: 

"A  person  can  only  be  considered  a  spy  when, 
acting  clandestinely  or  on  false  pretenses,  he  obtains 
or  endeavors  to  obtain  information  in  the  zone  of 
operations  of  a  belligerent,  with  the  intention  of 
communicating  it  to  the  hostile  party/ ' 

And  the  article  further  specifies  that  "soldiers 
not  wearing  a  disguise  who  have  penetrated  into  the 
zone  of  operations  of  the  hostile  army,  for  the  pur- 
pose of  obtaining  information,  are  not  considered 
spies.' ' 


INTERNATIONAL    LAW  107 

Of  Messengers.— May  messengers  be  treated 
as  spies?    The  same  article  adds: 

"Similarly,  the  following  are  not  considered 
spies:  Soldiers  and  civilians  carrying  out  their  mis- 
sion openly,  intrusted  with  the  delivery  of  dispatches 
intended  either  for  their  own  army  or  for  the  enemy's 
army." 

The  article  thus  applies  to  messengers  the  dis- 
tinction which  it  establishes.  If  we  consider,  there- 
fore, a  staff  officer  carrying  dispatches,  he  must,  if 
captured,  be  treated  as  a  prisoner  of  war.  If,  on  the 
other  hand,  we  consider  disguised  persons,  who  con- 
ceal themselves,  they  may  be  treated  as  spies.  The 
danger  in  the  latter  case  is  very  much  greater;  there 
is  an  act  of  perfidy  which  authorizes  rigorous  treat- 
ment. 

Aeronauts.— The  siege  of  Paris  raised  a  ques- 
tion in  this  connection— that  of  aeronauts.  (We  must 
not  confound  this  question  with  that  affecting  the 
modern  idea  of  the  use  of  dirigible  balloons  or  aero- 
planes in  war.)  Up  to  that  time  only  captive  balloons 
had  been  made  use  of  to  observe  the  enemy.  In  1870 
the  French  made  use  of  balloons  to  cross  the  enemy's 
lines  (five  were  captured  by  the  Germans).  There 
was  evidently  in  this  use  of  balloons  an  act  of  hos- 
tility, and  the  Germans  did  not  hesitate  to  fire  on 
them. 

The  first  thought  of  Count  Bismark  was  to  treat 
as  spies  captured  aeronauts;  as  a  matter  of  fact, 
some  of  them  were  brought  before  courts-martial, 
and  three  of  them  were  condemned  to  death;  but 
none  were  executed.  The  action  taken  was  deemed 
a  mistake,  even  by  the  German  jurisconsults,  as  it 
was  impossible  to  say  that  the  aeronauts  were  dis- 
guising their  mission. 

What  is  the  treatment  due  to  a  captured  aero- 
naut? 


108  SIXTH    LECTURE 

If  he  lands  within  the  enemy's  lines  without 
having  been  seen,  and  if  he  then  seeks  to  conceal 
himself  in  order  to  carry  his  dispatches  to  their  des- 
tination he  comes  within  the  category  of  a  spy.  If 
he  lands,  voluntarily  or  involuntarily,  within 
the  enemy's  lines,  and  does  not  conceal  himself,  he 
should  be  treated  as  a  messenger  accomplishing 
openly  his  mission.  Today,  in  all  the  great  armies, 
aerostation  is  a  military  branch;  aeronauts  are  thus 
military  persons  in  Uniform;  in  landing,  therefore, 
they  become  simply  military  messengers.  This  latter 
view  was  accepted  at  the  conference  at  Brussels  and  at 
that  of  The  Hague  (end  of  Article  29  of  the  rules. ) 

Dirigible  balloons  would  appear  today  to  be  prac- 
ticable adjuncts  to  war  materiel,  flying  machines  cer- 
tainly are,  and  the  time  seems  to  have  come  when  it 
is  necessary  to  formulate  rules  for  the  use  of  the 
aerial  domain,  as  well  for  time  of  peace  as  for  time 
of  war. 

It  may  well  be  doubted  whether  it  would  be  per- 
missible in  time  of  peace  to  hover  in  a  balloon  above 
a  foreign  fortified  city  or  a  fort;  to  do  this  would 
afford  an  easy  way  of  taking  panoramic  views,  and 
to  cause,  by  this  means,  harm  to  a  neighboring  na- 
tion. So,  we  may  also  admit  that,  in  time  of  war,  a 
belligerent  who  commands  a  portion  of  territory  owns 
equally  the  column  of  air  which  is  above  it  and  may, 
as  a  result,  forbid  aeronauts  to  cross  his  lines  over- 
head just  as  he  forbids  unauthorized  persons  to  cross 
on  land. 

Finally,  it  is  probable  that  if  aerial  navigation  is 
perfected  to  the  point  where  a  struggle  between 
aerial  craft  becomes  possible,  combats  over  neutral 
countries  will  be  forbidden.  It  would  be  greatly  to 
the  public  interest  to  have  these  different  questions 
settled  before  vested  rights  render  their  solution 
more  difficult. 


international  law  109 

Judicial  Observation  in  Regard  to  Espion- 
age. —The  rules  of  The  Hague  have  not  fixed  a  punish- 
ment for  spies,  leaving  them  to  be  punished  accord- 
ing to  the  laws  of  each  country.  In  general,  the  ap- 
plicable penalty  is  death,  without  allowing  the  par- 
ticular circumstances  of  the  case  to  be  considered. 

The  rules  of  The  Hague,  as  part  of  Art.  29  say: 

"A  person  can  only  be  considered  a  spy  when, 
acting  clandestinely  or  on  false  pretenses,  he  obtains 
or  endeavors  to  obtain  information  in  the  zone  of 
operations  of  a  belligerent  with  the  intention  of  com- 
municating it  to  the  hostile  party/ ' 

Art.  30  reads:  "A  spy  taken  in  the  act  shall  not 
be  punished  without  previous  trial." 

Two  things  are  thus  provided,  first  that  from  an 
international  point  of  view  a  spy  to  be  such  must 
have  done  his  work  in  the  zone  of  operations  and 
second,  that  there  can  be  no  summary  execution  even 
of  a  spy  taken  in  the  act. 

Our  existing  law  in  regard  to  spies  is  much 
broader  in  scope;  thus  under  Sec.  1343  of  the  Revised 
Statutes  any  person  who  is  found  lurking  or  acting 
as  a  spy  in  or  about  any  of  the  fortifications,  etc.,  or 
elsewhere  shall  be  triable  by  General  Court-Martial 
or  by  a  Military  Commission  and  on  conviction  suffer 
death. 

Under  The  Hague  Convention,  were  we,  for  ex- 
ample, at  war  with  Mexico,  and  operating  on  the 
frontier  of  that  State,  a  spy  could  only  be  one 
working  within  the  zone  of  military  operations,  a 
somewhat  vague  term,  but  one  of  which  the  limits 
could  ultimately  be  ascertained.  We  may  admit  that 
in  such  a  case  the  city  of  Washington  would  be  deemed 
to  be  without  the  zone.  It  follows  that  a  Mexican 
caught  lurking  or  spying  in  the  War  Department 
would  apparently  not  to  be  a  spy  under  international 
law. 


110  SIXTH    LECTURE 

So  long  as  an  apprehended  spy  is  an  American  he 
is  amenable  to  our  laws  and  may  be  tried  in  accord- 
ance with  our  code,  but  where  he  is  a  national  of  the 
belligerent  with  whom  we  are  at  war,  or  of  another 
adherent  to  the  Convention,  what  law  shall  govern? 
Undoubtedly  that  established  by  The  Hague  Conven- 
tion. If  the  supposed  spy  does  not  come  within  the 
purview  of  Art.  29  of  the  convention  and  yet  is  a 
foreign  national  who  appears  to  have  committed  acts 
of  espionage,  he  should  not  be  held  as  a  spy  but  as 
one  who  comes  within  the  application  of  our  "Na- 
tional Defense  Secret,,  law. 

Article  30  of  The  iHague  rules  forbids  the  pun- 
ishment, without  a  preliminary  trial  of  a  spy  taken 
in  the  act.  It  prohibits,  therefore,  the  summary  ex- 
ecution of  spies  as  it  does  of  irregular  combatants . 

This  law,  because  it  required  the  observance  of 
the  forms  of  a  more  or  less  hasty  judicial  procedure 
has  often  been  violated;  but  a  number  of  cases  have 
sanctioned  it;  among  others,  the  conviction  of  General 
Cremer,  guilty  of  having  caused  to  be  shot  without 
trial,  at  Beaune,  an  inhabitant  of  Dijon,  against  whom 
he  had  strong  suspicions  of  spying. 

To  be  punished,  a  spy  must  be  taken  in  the  act. 
The  rules  of  The  Hague  (Art.  31)  confirm  this  view: 

"The  spy  who,  after  rejoining  the  army  to  which 
he  belongs,  is  subsequently  captured  by  the  enemy, 
is  treated  as  a  prisoner  of  war  and  incurs  no  respon- 
sibility for  his  previous  acts  of  espionage/ ' 

It  is  this  view  which  is  emphasized  in  The  Hague 
requirement  that  a  spy  must  be  taken  in  the  act.  It 
means  undoubtedly  that  he  must  be  taken  during, 
what  I  may  call,  his  spying  tour;  from  the  time  the 
spy  enters  the  zone  of  operations  of  his  enemy  until 
he  leaves  it,  he  is  accomplishing  one  act  of  spying. 
Once  this  accomplished  he  ceases  to  be  an  apprehen- 
sible spy. 


,J». 


INTERNATIONAL    LAW  111 

The  article  is  explained  judicially  on  the  ground 
that  the  penalty  pronounced  against  espionage  being 
a  necessary  punishment,  based  upon  the  right  of 
legitimate  defense,  the  right  of  punishment  is  no 
longer  justified  when  the  attack  ceases. 

It  is  explained  practically  by  the  difficulty  of 
proof  when  the  alleged  spy  is  not  taken  in  the  act. 

It  is  here  that  the  important  consideration  of  the 
distinction  between  acts  of  espionage  and  acts  of  trea- 
son becomes  apparent. 

An  act  of  treason  may  be  punished  when  the 
offender  is  not  caught  flagrante  delicto.  It  may  be 
punished  even  when  the  war  is  over. 

Professor  Renault  claims  that  the  distinction  be- 
tween treason  and  espionage  has  been  often  misun- 
derstood and  cites  in  support  of  that  view,  Par.  104, 
General  Order  No.  100,  1863.  This  paragraph  does 
not  support  the  view  of  the  great  French  authority. 
The  paragraph  merely  provides  that  a  spy  or  war 
traitor  who  having  returned  to  his  own  army  is  later 
captured,  may  not  be  punished  for  his  early  crime 
but  may  be  held  in  closer  custody  than  other  prison- 
ers of  war  as  "a  person  individually  dangerous." 
We  must  bear  in  mind  that  treason  as  defined  in  our 
constitution  has  a  specific,  technical  meaning  and  is 
not  necessarily  the  crime  committed  by  a  "war 
traitor."  Treason,  as  understood  with  us,  is  a  breach 
of  allegiance.  A  war  traitor  is  one  who  commits 
treason  under  the  laws  of  war  and  not  under  the 
constitution  of  the  United  States.  While  the  in- 
habitants of  occupied  territory  are  said  to  owe  a 
temporary  allegiance  to  the  occupant,  such  allegiance 
is  quite  different  from  that  due  to  one's  own  govern- 
ment. Unless  it  be  a  case  of  domestic  disturbance 
or  where  the  United  States  is  invaded,  the  presump- 
tion must  be  that  a  war  traitor  will  be  one  who  does 
not  own  allegiance  to  the  United  States  in  the  sense 


112  SIXTH    LECTURE 

contemplated  by  the  constitution  and  that  the  crime 
he  commits  will  be  more  akin  to  espionage  than  to 
treason.  I  cannot  see  why  a  prisoner  of  war  who 
has  shown  exceptional  personal  daring  and  enterprise 
in  the  way  of  penetrating  our  lines  or  otherwise 
acting  in  a  manner  to  indicate  very  exceptional 
astuteness,  should  not  be  more  carefully  watched 
than  need  be  the  ordinary  prisoner  of  war.  We  may, 
I  think,  safely  conclude  that  what  we  call  a  war 
traitor  must  be  considered  as  coming  under  the  law 
applicable  to  espionage  and  not  under  the  American 
doctrine  of  treason. 

Prisoners  of  War 

Historical. —The  conditon  of  prisoners  of  war 
has  varied  very  much  during  the  ages.  In  the  days 
of  antiquity  their  fate  was  extremely  precarious. 
They  were  put  to  death,  as  it  was  considered  danger- 
ous to  allow  them  to  live.  Later  it  was  considered 
preferable  to  keep  them,  in  order  to  utilize  their 
services,  and  slavery  was  established.  In  the  middle 
ages  a  prisoner  of  war  might  buy  his  liberty  by 
paying  a  ransom  to  the  person  who  had  captured 
him. 

In  the  wars  of  the  Revolution  and  of  the  Empire, 
captivity  was  generally  very  hard.  It  will  be  suffi- 
cient, to  give  an  idea  of  this,  to  recall  the  memories 
of  the  English  hulks  and  of  Siberia.  The  British 
hulks  in  which  many  American  prisoners  were  con- 
fined during  our  Revolution,  and  in  which  many  died, 
are  frequently  brought  to  our  memory.  It  is  but 
fair,  however,  to  reflect  on  the  general  conditions  of 
life  which  prevailed  at  the  end  of  the  XVIII  century 
and  to  realize  that  the  comforts  enjoyed  by  the 
persons  best  situated  in  those  days  were  far  below 
our  present  requirements,  and  that  the  position  of 


INTERNATIONAL     LAW  113 

prisoners  of  war  at  the  period  was  perhaps  propor- 
tionately no  worse  than  it  is  today. 

During  the  XIX  century  the  customs  in  regard  to 
prisoners  of  war  became  entirely  modified.  The 
Crimean  war  marks  the  salient  point  of  this  evolution; 
the  purely  political  character  of  that  war  favored  this. 

The  war  of  1870  called  particular  attention  to  the 
fate  of  prisoners  of  war.  The  unfortunate  situation 
of  the  captive  Frenchmen  started  a  generous  impulse 
in  Belgium.  A  society  was  formed  to  assist  them, 
and  the  general  secretary  of  this  society  had  the 
satisfaction  of  being  able  to  cause  the  offer,  by  the 
Belgian  delegation  at  the  conference  of  1899,  of  a 
project  of  regulations  which  was  in  part  adopted. 

General  Condition  of  Prisoners  of  War.— 
Generally  speaking,  the  situation  of  prisoners  of  war 
results  from  the  purpose  of  war,  which  is,  to  place  the 
adversary  in  a  position  which  renders  him  unable  to 
take  further  part  in  the  struggle.  A  prisoner  is  a 
disarmed  enemy.  Any  violence  towards  him  becomes 
improper;  only  such  steps  may  be  taken  against  him 
as  are  necessary  to  prevent  his  escape  and  his  be- 
coming harmful  once  more. 

The  rules  of  The  Hague  of  1899,  in  a  series  of 
articles,  take  into  consideration  the  situation  of  pris- 
oners of  war.  Previously,  national  regulations  had 
set  up,  in  regard  to  this,  certain  liberal  and  humane 
rules.  Those  of  France,  which  became  operative  on 
March  21,  1893,  were,  at  the  conference  of  1899,  the 
object  of  great  praise.  Let  it  be  well  understood 
that  in  matters  of  detail  such  regulations  are  for  in- 
terior order;  it  is  essential  however  that  they  should 
be  in  harmony  with  the  broad  lines  of  the  rules  of 
The  Hague. 

The  question  presents  itself  as  to  who  may  be 
made  a  prisoner  of  war.  Clearly,  the  situation  of  a 
prisoner  may  be  more  or  less  hard,  according  to  the 


114  SIXTH    LECTURE 

individual.  On  the  one  hand,  the  status  confers  upon 
a  belligerent  certain  privileges  which  are  refused  to 
those  who  might  be  convicted  of  perfidy,  or  to  the 
irregular  combatant,  who  does  not  come  within  the 
rules  which  we  have  set  forth.  On  the  other  hand, 
it  would  constitute  severe  treatment  for  a  civil 
functionary,  who  has  the  right  to  be  free.  The  rules 
of  The  Hague  do  not  decide  the  question,  and  we 
may  still  ask  to  what  extent  captivity  may  be  imposed 
upon  persons  who  are  not  active  combatants. 

It  would  seem,  however,  if  non-combatants  vio- 
late the  laws  of  war,  that  they  may  be  incarcerated 
as  malefactors  and  that  they  are  in  no  wise  entitled  to 
the  benefits  due  a  prisoner  of  war.  If  on  the  other 
hand  they  violate  the  civil  laws  under  military  gov- 
ernment, their  position  is  assimilated  to  that  of  civil 
prisoners  and  again  they  are  not  entitled  to  the  status 
of  prisoners  of  war. 

It  is  a  principle  today  that  prisoners  are  in  the 
power  of  the  enemy  state,  and  not  of  the  individuals 
who  capture  them.  They  must  not  be  maltreated; 
their  personal  belongings  must  not  be  taken;  but 
their  arms,  their  horses  and  their  military  papers 
may  be  confiscated.  (Art.  4  of  the  rules  of  The 
Hague.) 

In  the  case  where  the  prisoner  should  carry  a 
large  sum  of  money,  one  may  endeavor  to  ascertain 
if  it  belongs  to  him,  because  if  it  belongs  to  the  state 
it  would  be  a  good  capture;  this  is  a  question  of  fact. 
In  any  case,  even  if  the  money  belongs  to  the  prisoner, 
it  is  permissible,  as  a  measure  of  precaution,  to 
hold  it  for  him  as  a  deposit.  This  in  fact  would  ap- 
pear so  advisable  as  to  be  almost  a  requirement.  The 
mischief  making  power  of  money  is  so  well  accepted 
that  for  prisoners  to  be  allowed  to  retain  large  sums 
would  be  to  invite  trouble  for  the  captor. 

To  secure  the  safe-keeping  of  prisoners  of  war, 


INTERNATIONAL    LAW  115 

may  they  be  imprisoned?  Under  Art.  5  they  may 
only  be  interned  in  a  determined  place,  under  the  ob- 
ligation not  to  go  outside  of  certain  fixed  limits. 
This  measure  is  more  or  less  severe,  according  to  the 
country;  there  is  no  fixed  rule.  When  security  abso- 
lutely requires  it,  prisoners  may  be  locked  up,  but 
this  only  while  the  circumstances  which  necessitate 
such  a  measure  last.    This  clause  was  added  in  1907. 

As  in  regard  to  their  internment,  so  also  the 
work  of  prisoners  is  not  subject  to  a  fixed  rule.  The 
state  may  utilize  the  labor  of  prisoners  of  war  but 
work  is  never  imposed  upon  officers  (addition  made  in 
1907  to  art.  6);  and  soldiers  may  not  be  employed  at 
work  having  any  connection  with  the  operations  of 
the  war.  Prisoners  may  be  authorized  to  do  work 
either  for  the  account  of  the  state  or  for  the  account 
of  individuals,  or  for  the  account  of  the  prisoners 
themselves.  The  money  earned  serves  to  better  their 
condition,  any  balance  being  paid  to  them  on  their  re- 
lease. 

The  upkeep  of  the  prisoners  is  a  charge  upon  the 
belligerent  in  whose  power  they  are  (Art.  7).  The 
question  of  reimbursement  is  to  be  considered  at  the 
conclusion  of  peace.  A  striking  example  is  that  of 
the  very  large  indemnity  which  Italy  paid  under  this 
rule  to  the  Negus  of  Abyssinia. 

Prisoners  are  subject  to  the  penal  laws  and  to  the 
disciplinary  regulations  of  the  country  in  which  they 
are  captives. 

Escape.  —An  escape  is  not,  in  itself,  considered 
a  crime.  One  has  the  right  to  oppose  it,  even  by  vio- 
lence, but  if  the  prisoner  is  captured  while  in  flight 
before  having  left  the  country,  he  may  be  punished 
only  by  disciplinary  penalties  (Art.  8)  on  the  condi- 
tion, however,  that  the  escape  has  not  been  accompa- 
nied by  any  crime  such  as  violence,    corruption  of 


116  SIXTH    LECTUR-E 

guards,  etc.,  in  which  case  it  would  be  proper  to 
apply  the  penalties  of  ordinary  law. 

In  regard  to  persons  who,  after  having  succeeded 
in  escaping,  are  recaptured  with  arms  in  their  hands, 
they  are  not  subject  to  any  penalties  because  of  their 
escape  and  must  again  be  treated  as  prisoners  of 
war. 

Another  question  which  raised  difficulties  in  1870 
was,  fortunately,  determined  by  the  conference  of 
1907— the  position  of  escaped  prisoners  who  seek 
refuge  in  a  neutral  country.  Should  the  latter  leave 
them  at  liberty  or  put  them  under  guard?  Which- 
ever it  might  do,  it  would  be  favoring  one  of  the 
belligerents.  It  was  necessary  to  trench  the  ques- 
tion in  order  to  avoid  future  recrimination;  it  was  de- 
cided that  escaped  prisoners  who  reach  neutral  terri- 
tory should  be  left  at  liberty. 

Liberty  on  Parole. —Liberty  on  parole  has 
often,  and  particularly  in  1870,  raised  difficulties  of 
great  delicacy  as  regards  the  relation  of  the  belliger- 
ent with  those  whom  it  has  so  liberated,  or  between 
the  latter  and  their  own  government.  Liberty  on 
parole  results  from  a  contract— that  is,  from  an  agree- 
ment of  the  two  parties;  such  is  the  fundamental  idea. 
From  this  flow  two  consequences,  which  Article  11 
has  formulized: 

1.  A  prisoner  may  not  insist  upon  his  being  lib- 
erated, even  by  promising  not  to  resume  a  part  in  the 
struggle. 

2.  A  belligerent  who  of  his  own  motion  sends 
back  a  prisoner  may  not  require  of  him  a  promise 
that  he  will  not  again  resume  arms. 

The  article  itself  reads  as  follows: 

Article  11.  *  'A  prisoner  of  war  cannot  be  com- 
pelled to  accept  his  liberty  on  parole;  similarly  the  hos- 
tile Government  is  not  obliged  to  accede  to  the  request 
of  the  prisoner  to  be  set  at  liberty  on  parole.' ' 


INTERNATIONAL    LAW  117 

This  principle  was  applied  during  the  South 
African  war.  The  Boers  not  being  able  to  furnish 
a  guard  for  their  English  prisoners,  released  them 
purely  and  simply  without  requiring  any  undertaking 
from  them. 

But  may  a  prisoner  at  all  times  properly  enter 
into  such  a  contract?  This  cannot  be  answered  pos- 
itively; it  depends  on  the  rules  of  his  own  country. 
These  rules  either  authorize  or  forbid  liberty  on  parole. 
In  the  first  case  there  is  no  doubt,  the  government  of 
the  liberated  prisoner  is  bound  to  respect  the  parole. 
But  today  almost  all  army  regulations  forbid  liberty 
on  parole. 

In  1870  the  French  regulations  were  not  suffi- 
ciently explicit.  They  did  not  contemplate  the  case 
of  capitulation,  and  forbade  officers  to  separate  their 
fate  from  that  of  their  troops,  and  consequently  to 
accept  liberty  on  parole.  This,  however,  did  not 
prevent  certain  commandants  of  forts  from  stipu- 
lating in  their  capitulation  for  liberty  on  parole  for 
officers;  this  led  to  their  being  censured  by  the  French 
Commission  of  Inquiry  in  1871. 

During  our  Civil  War  the  question  of  paroling 
prisoners  was  fully  provided  for,  and  most  minute 
instructions  were  issued  (see  for  instance  G.O.  142, 
W.D.,  September  25,  1862),  but  today  no  law  or 
regulation  of  ours  would  seem  to  cover  the  point. 
The  underlying  principle,  however,  would  appear  to 
be  that  no  officer  or  soldier  may,  without  the  consent 
of  his  own  country,  which  he  has  engaged  himself  to 
serve,  enter  into  an  agreement  with  the  enemy  to 
avoid  such  service.  The  services  which  a  paroled 
officer  or  soldier  might  render  to  his  own  army 
while  the  parole  is  in  force  would  frequently  not  off- 
set the  burden  to  the  enemy  of  having  to  guard  and 
subsist  him.  Were  the  parole  system  rendered  too 
easy,  temptation  might  be  offered  to  certain  men  to 


118  SIXTH    LECTURE 

place  themselves  in  a  position  to  be  captured  and 
then  through  the  instrumentality  of  a  parole  return 
and  be  out  of  danger  while  others  continue  the  fight. 

The  very  general  prohibition  today  of  liberty  on 
parole  should  be  approved,  because  the  situation  of 
those  paroled  is  always  difficult  and  doubtful  and 
may  lead  to  grave  embarrassments. 

What  would  be,  in  regard  to  his  own  country,  the 
situation  of  an  officer  who  accepted  liberty  on  parole 
against  the  laws  of  that  country?  He  would  first  be 
amenable  to  a  disciplinary  penalty,  the  fault  com- 
mitted is  one  against  discipline— of  this  there  can  be 
no  doubt.  But  may  the  government  decline  to  take 
into  account  the  promise  given  by  the  liberated  offi- 
cer, consider  him  as  entirely  at  its  disposal,  and 
oblige  him  to  resume,  at  his  risk  and  peril,  his  mili- 
tary service?  Article  10  is  not  sufficiently  precise  on 
this  subject.  Its  wording  seems  only  to  consider  a 
case  where  the  parole  is  given  in  conformity  with  the 
laws  of  the  prisoner's  country.  And  yet  the  govern- 
ment which  would  incorporate  again  in  its  army  a 
paroled  prisoner  would  violate  a  parole  given,  on 
which  the  enemy  government  has  an  absolute  right 
to  count.  It  seems  more  equitable,  if  it  should  not 
be  desired  to  recognize  the  contract,  to  punish  the 
officer  who  has  made  the  mistake  of  accepting  his 
liberty  on  parole  and  to  reconduct  him  afterwards  to 
the  advance  posts  and  turn  him  back  to  the  enemy. 

What  is  the  exact  bearing  of  the  undertaking  of 
one  liberated  on  parole?  This  clearly  depends  on  the 
terms  of  the  contract.  The  formula  employed  will 
necessarily  vary;  it  will  be  sometimes  broad,  some- 
times narrow;  it  is  important  that  it  be  precise.  In 
1870  the  Germans  required  a  paroled  prisoner  to  do 
nothing  more  against  the  interests  of  Germany  dur- 
ing the  remainder  of  the  war.  This  formula,  very 
general  in  its  terms,  created,  for  those  liberated,  an 


INTERNATIONAL    LAW  119 

impossible  situation  holding  them  in  absolute  inac- 
tivity; because  the  Germans  might  have  insisted  that 
the  officer,  liberated  under  these  conditions,  enter  into 
no  employment,  even  one  far  from  the  theater  of 
war,  since  this  might  serve  to  render  another  officer 
available  to  serve  at  the  front;  for  example,  were  the 
paroled  officer  to  serve  in  Algeria  or  in  the  colonies; 
to  instruct  recruits  in  the  interior  of  the  country,  or 
even,  up  to  a  certain  point,  to  fill  a  civil  employment. 

The  danger  of  such  indecision  as  to  the  bearing 
of  the  engagement  will  be  avoided  if  it  be  simply 
stipulated  that  the  prisoner  who  is  being  liberated 
shall  engage  himself  to  fight  no  more  during  the  re- 
mainder of  the  war.  He  may  then  be  utilized  in 
special  services  which  will  not  bring  into  play  mili- 
tary good  faith. 

In  regard  to  the  relations  of  a  paroled  prisoner 
with  the  country  which  has  placed  him  at  liberty, 
Article  12  establishes  as  a  principle  that  the  violation 
of  a  parole  given,  carries  with  it  the  loss,  not  only  of 
the  advantages  of  liberty  on  parole,  but  also  of  the 
status  of  a  prisoner  of  war.  The  paroled  prisoner 
who  should  be  taken  with  arms  in  his  hands  will  be 
subject  to  the  penalty  which  is  set  forth  by  the  na- 
tional regulations  of  the  captor,  generally  speaking, 
this  is  the  pain  of  death.  The  penalty  could  not  be 
fixed  by  an  international  regulation;  but  the  rules  of 
The  Hague  forbid  any  summary  execution,  hence 
there  must  be  a  trial. 

Assistance  for  Prisoners  of  War  -  Informa- 
tion and  Succor.  -Among  the  most  cruel  sufferings 
which  war  causes  are  those  due  to  the  uncertainty  in 
which  a  prisoner  and  his  family  are  placed  so  far  as 
concerns  their  mutual  fate  during  a  prolonged  cap- 
tivity. There  has  been  sought  to  create  a  system  by 
which  to  minimize  this  unfortunate  situation. 


120  SIXTH    LECTURE 

The  rules  of  The  Hague  (Article  14)  now  render 
an  information  system  obligatory.  Each  of  the  bel- 
ligerent governments  has  to  send  to  the  other,  lists  of 
prisoners  with  an  indication  of  the  place  where  they 
are  to  be  found.  At  the  same  time  he  must  give  no- 
tice of  the  names  of  those  who  may  have  been  paroled. 

Along  the  same  order  of  philanthropic  ideas,  an 
effort  has  been  made  to  encourage  the  organization  of 
societies  for  the  succor  of  prisoners  of  war,  analogous 
to  those  which  have  been  instituted  for  the  help  of 
the  wounded.  A  certain  Frenchman,  in  particular, 
Mr.  Romberg,  has  concerned  himself  with  this  idea, 
which  was  accepted  in  principle  by  The  Hague  Con- 
ference; and  Article  15  of  the  rules  prescribes  that 
every  facility  should  be  given  to  such  societies  to 
ameliorate  the  lot  of  prisoners.  It  must  be  admitted 
that  the  idea  seems  but  little  practicable.  Societies 
created  for  this  purpose  alone,  would  have  small 
chance  of  being  instituted  in  time  of  peace;  in  time  of 
war  they  would  arouse  a  spirit  of  defiance.  However, 
it  is  desirable  that  Article  15  should  not  remain  a  dead 
letter.  The  practical  method  would  seem  to  consist 
in  charging  the  societies  for  the  help  of  the  wounded 
with  the  assistance  of  prisoners.  This  would  afford 
a  new  branch  for  their  activity.  Of  course  no  part 
of  their  present  resources  could  be  devoted  to  prison- 
ers, a  special  section  would  be  created,  having  its  own 
funds.  Societies  for  aid  to  the  wounded  which  have 
come  into  being  in  the  various  countries  entertain 
cordial  relations  among  themselves;  they  have  peri- 
odical reunions,  where  they  exchange  very  useful  in- 
formation, and  they  inspire  confidence  in  their  respec- 
tive governments.  They  would  seem,  therefore, 
capable  of  offering  all  the  desired  guaranties,  in  the 
r61e  of  intermediary  between  belligerents,  for  the 
transmission  of  aid  to  prisoners. 


INTERNATIONAL    LAW  121 

"Voeux"  have  been  expressed  in  this  sense  by 
several  Red  Cross  congresses,  of  which  the  most  re- 
cent was  that  of  London  in  June,  1907.  In  France  the 
"Societe  de  Secours  aux  Blesses  Militaires,,  has  ac- 
cepted the  principle  of  such  an  institution. 

Article  16  of  the  rules  of  The  Hague  stipulates  that 
there  shall  be  free  postage  and  that  facilities  shall  be 
granted  for  sending  and  transmitting  aid  of  every 
kind.  This  applies  both  to  letters,  money,  etc.,  sent 
to,  or  by,  prisoners  of  war,  and  to  the  letters  of  the 
inquiry  offices.  The  article  further  requires  free  cus- 
toms entry  and  free  transportation  by  government 
railroads  for  the  presents  and  relief  in  kind  for  pris- 
oners. 

Exchange— Rep atri ation. — Captivity  ceases 
either  by  exchange  or  on  the  conclusion  of  peace. 
The  rules  of  The  Hague  contain  no  provision  relative 
to  the  exchange  of  prisoners.  It  has  been  concluded, 
with  reason,  that  each  belligerent  should  be  free  to 
determine  this  question  according  to  its  interests. 

In  other  times,  when  wars  were  very  long,  fre- 
quent exchanges  of  prisoners  were  made.  Usually, 
at  the  beginning  of  the  war  a  convention  was  reached 
determining  the  conditions  of  these  exchanges  during 
the  continuance  of  hostilities.  This  was  done  with 
much  elaboration  at  the  time  of  our  civil  war.  Today 
it  is  very  rare.  The  central  power  alone  is  qualified 
to  decide  and  negotiate  exchanges.  In  principle, 
however,  were  communications  cut,  or  even  difficult, 
a  Commander  in  Chief  might  exercise  this  right. 

The  conclusion  of  peace  also  frees  prisoners,  who 
must  then  be  repatriated  as  soon  as  possible.  (Art. 
20.)  However,  it  is  not  stated  that  all  prisoners  must 
be  repatriated  in  a  short  time,  since  certain  of  them 
may  have  been  subjected  to  penalties. 

At  the  conference  of  The  Hague  various  dele- 
gates had  asked  that  disciplinary  punishments  incur- 


122  SIXTH    LECTURE 

red  by  prisoners  should  not  be  considered,  and  that 
only  crimes  and  offenses  at  civil  law  should  be  a 
ground  for  continuance  in  capitivity  after  the  conclu- 
sion of  peace.  The  Germans  opposed  themselves  to 
this  proposition,  remarking  that  its  adoption  would 
make  extremely  difficult  the  maintenance  of  discipline 
as  the  time  for  the  conclusion  of  peace  approached ; 
that  it  would  be  better  to  leave  the  matter  to  the  good 
will  of  the  belligerents.  This  view  may  properly  be 
accepted. 


SEVENTH   LECTURE 


The  Sick  and  Wounded.— The  situation  of  the 
sick  and  wounded  relates  to  that  of  prisoners  of  war, 
because  when  in  the  hands  of  the  enemy  they  are 
prisoners  of  a  peculiar  kind.  If  we  consider  the  sick 
and  wounded  of  each  belligerent  the  question  is  one 
of  domestic  regulation.  But  the  question  becomes  one 
of  international  regulation  when  we  are  concerned 
with  caring  for  the  sick  and  wounded  of  the  enemy. 
This  idea,  although  elementary  and  capital,  has  often 
failed  of  recognition;  the  sick  and  wounded  are  pris- 
oners to  whom  special  care  should  be  given. 

Historical.— For  a  long  time  the  care  of  the 
enemy's  wounded  was  a  simple  question  of  humanity; 
an  international  legal  duty  in  regard  to  it  did  not  ex- 
ist. There  were,  to  be  sure,  at  times,  in  the  centu- 
ries anterior  to  ours,  agreements  between  army  chiefs 
having  for  their  purpose  to  protect  the  sick  and 
wounded,  the  establishments  which  gave  them  shelter, 
and  the  personnel  which  cared  for  them.  But  these 
agreements,  always  temporary  ones,  and  limited  to 
certain  particular  cases,  were  optional.  The  need  of 
a  sanitary  organization  accepted  by  all  powers  was 
particularly  felt  during  the  wars  of  the  Revolution 
and  of  the  Empire.  The  convention  of  Geneva  of 
1864  accomplished  this  great  advance  by  organizing  a 
general  obligatory  system  for  all  countries;  it  is  in 
this  that  its  originality  consists.  The  result  is  a 
striking  example  of  what  may  arise  from  private  in- 
itiative. During  the  war  in  which  France  and  Italy 
met  Austria  help  was  lacking  for  the  care  of  the  sick 
and  wounded.  A  Swiss,  Mr  Dunant,  who  was  follow- 
ing the  military  operations  as  a  spectator,  visited  the 
battlefield  of  Solferino.    The  suffering  which  he  wit- 

123 


124  SEVENTH    LECTURE 

nessed  there  led  to  his  publishing  a  book  called 
"Recollections  of  Solferino,"  which  attracted  great 
attention.  He  maintained,  as  a  thesis,  that  the 
official  health  service  could  not  possibly  succor  the 
wounded  properly;  that  private  charity  should  lend 
its  assistance  and  prepare  for  that  purpose  in  advance, 
during  time  of  peace.  This  idea  aroused  the  en- 
thusiasm of  a  group  of  men  of  eminently  practical 
ideas,  who  formed  at  Geneva,  a  modest  society  under 
the  presidency  of  Mr.  Moynier.  In  order  to  obtain 
results  this  Genevese  society,  in  1863,  called  a  private 
international  conference  to  which  the  governments 
were  invited  to  send  delegates,  The  situation  was 
studied  with  care,  and  hopes,  "voeux",  were  ex- 
pressed that  there  should  be  in  each  country  a  single 
society,  with  a  central  committee,  and  further  that 
certain  guaranties  should  be  given  to  such  societies 
in  order  that  they  might,  in  full  security,  exercise 
their  kindly  purpose.  The  work  of  this  conference 
has  had  a  great  influence,  for  everything  which  has 
since  been  done,  has  been  done  along  the  line  of 
these  ideas.  But  the  question  of  the  guaranties  to 
be  given  to  the  societies  was  beyond  the  limits  of 
private  enterprise;  it  demanded  international  regu- 
lations and  a  diplomatic  conference  alone  could  make 
of  this  hope  ("voeu")  a  reality. 

It  is  to  this  meeting  of  1863  that  the  Volunteer 
Red  Cross  Societies  owe  their  origin.  The  later  Con- 
ferences merely  recognized  them  and  legislated  on 
their  behalf.  The  American  National  Red  Cross  has 
been  chartered  by  Congress  and  has  by  recent 
additional  legislation  been  brought  in  touch  with  the 
Army. 

The  Swiss  Federal  Council  having  been  asked  to 
do  so,  accepted  the  mission  of  assembling  a  conference 
and  succeeded  therein,  thanks  to  the  particularly 
strong  assistance  of  the  Emperor  Napoleon  III. 


INTERNATIONAL    LAW  125 

The  Geneva  Convention  of  1864.— In  August, 
1864,  there  convened  at  Geneva  the  international 
conference  which  formulated  the  celebrated  "Con- 
vention of  Geneva  of  August  22,  1864,"  which  re- 
mained in  force  until  the  ratification  of  the  convention 
of  1906. 

The  convention  of  1864  first  signed  by  France, 
is,  today,  accepted  by  almost  all  the  States  of  the 
world.  But  if,  at  the  start,  it  raised  great 
enthusiasm,  it  also  raised  much  suspicion.  It  lent 
itself,  to  be  sure,  to  many  criticisms.  Hastily  pre- 
pared, it  did  not  allow  for  a  certain  number  of 
considerations  both  legal  and  military;  it  offered, 
besides,  a  number  of  gaps.  However,  the  number  of 
its  adherents  only  increased  after  each  war.  A  battle 
is  a  terrible  practical  lesson,  and  the  example  of  Konig- 
gratz  remains  famous.  Austria  not  having  as  yet 
adhered  to  the  convention,  the  Austrian  doctors,  in 
the  fear  of  being  made  prisoners  by  the  Prussian 
army,  abandoned  their  wounded,  whose  suffering  was 
considerably  increased  by  this  interruption  of  care 
and  the  ultimate  insufficiency  of  sanitary  measures. 

The  criticisms  directed  against  the  convention  of 
1864  were  justified;  a  revision  was  clearly  necessary. 
In  1868  a  diplomatic  conference  met  for  this  purpose 
at  Geneva.  It  prepared  additional  articles,  of  which 
the  greater  part  had  relation  to  maritime  warfare. 
These  articles,  it  may  be  said,  were  not  ratified. 

In  1874,  at  the  time  of  the  Brussels  meeting, 
some  interesting  observations  were  made  in  regard 
to  the  care  to  be  given  to  the  sick  and  wounded,  but 
the  assembly  confined  itself  to  referring  them  to  a 
later  conference  at  which  the  convention  of  Geneva 
should  be  amended. 

Finally  in  1899,  the  First  Peace  Conference,  after 
having  expressed  a  hope  ("voeu")  for  another  meet- 
ing, prepared  the  convention  of  July  29,  1899,  and 


128  SEVENTH    LECTURE 

applied  to  marine  warfare  the   principles   of   the 
Geneva  Convention. 

The  Convention  of  July  6,  1906 

As  a  result  of  these  moves  the  Swiss  Federal 
Council  decided  to  call  a  conference  of  revision.  But 
first  the  South  African  war,  then  the  Russo-Japanese 
war,  retarded  the  conference,  which  was  not  able  to 
meet  until  June,  1906.  The  work  of  this  conference 
resulted  in  the  Convention  of  July  6,  1906,  destined 
to  take  place  of  the  older  one  of  1864. 

The  delegates  of  thirty-five  states  were  present, 
and  each  country  had  sent  envoys  having  the  quali- 
fication of  representation  required— soldiers,  doctors, 
jurisconsults,  and  diplomats.  The  delegates  showed 
very  good  will,  and  inspired  themselves  by  the 
common  interests  to  reconcile  the  military  exigencies 
and  those  of  humanity,  and  to  avoid,  in  the  stipula- 
tions, exaggerations  which  would  render  necessary 
their  violation. 

The  convention  of  1906  maintained  as  its  essen- 
tial basis  the  principles  of  the  convention  of  1864. 
More  complete,  better  ordered,  clearer,  than  the 
earlier  one,  it  corrected  its  inconvenient  features, 
filled  up  gaps,  and  caused  obscurities  to  disappear; 
it  systematically  avoided  the  use  of  the  words 
"neutrality"  and  "inviolability"  which  did  not  en- 
tirely fit  the  situation,  but  befogged  the  ideas  and 
might,  as  a  matter  of  fact,  lead  to  absurd  results. 

Chapter  I. — Chapter  I  is  devoted  to  the  sick 
and  wounded.  The  fundamental  principle  admitted 
is  the  obligation  which  each  belligerent  takes  upon 
himself,  to  care  for  the  sick  and  wounded,  regardless 
of  the  nationality  to  which  they  belong. 

This  duty,  in  other  times  a  purely  moral  one,  is 
thus  today  a  legal  obligation  of  an  international 
nature.    Its  importance  is  very  considerable  in  view 


INTERNATIONAL    LAW  127 

of  the  enormous  number  of  effectives  brought  into 
contact  by  modern  wars. 

Experience  shows  that  it  will  sometimes  be  diffi- 
cult even  for  the  conqueror  to  succor,  with  entire 
efficacy,  all  the  wounded  on  a  battlefield  (example  of 
Kbniggratz),  and  therefore  it  has  been  determined 
that  the  vanquished  nation  shall  have  the  right  to 
leave,  on  the  field,  part  of  the  necessary  personnel 
and  materiel  to  continue  to  care  for  the  wounded 
which  it  has  to  abandon. 

What  is  the  legal  position  of  the  sick  and  wounded 
who  have  fallen  into  the  enemy's  power?  In  law, 
they  are  prisoners,  in  a  particular  status  it  is  true, 
arising  from  the  fact  that  they  need  care,  but  who, 
when  they  shall  have  been  cured,  will  find  themselves 
in  the  same  position  as  ordinary  prisoners  of  war. 
It  was  an  error  of  the  convention  of  1864  not  to 
recognize  this  fundamental  idea.  That  convention 
required—and  this  was  maintained  in  1868— the 
return  to  their  country,  after  being  cured,  of  the 
sick  and  wounded  who  should  be  recognized  as  in- 
capable of  further  service  and  of  those  who,  even 
though  capable  of  service,  should  engage  themselves 
not  to  resume  arms  during  the  continuation  of  the 
war -an  exaggerated  idea  of  which  it  may  be  said, 
no  application  was  ever  made. 

In  1906,  this  rule  was  emphatically  set  aside  by 
proclaiming  that  the  sick  and  wounded  are  prisoners, 
and  that  all  the  rules  of  international  law  concerning 
prisoners  should  be  applicable  to  them.  The  conven- 
tion, by  the  way,  reserved  a  right  of  discretion  to 
the  chiefs  of  armies  under  which  they  are  entirely 
free  to  stipulate  for  such  agreements  in  favor  of  the 
wounded,  as  may  be  deemed  by  them  convenient. 

An  innovation  of  1906  has  relation  to  the  patrol- 
ing  of  the  battlefield  in  order  to  prevent  acts  of  theft 
and  pillage.    The  party  which  occupies  the  field  must 


128  SEVENTH    LECTURE 

cause  the  wounded  to  be  sought  for  and  must  take 
measures  for  their  protection;  this  is  a  provision  of 
which  the  practical  importance  cannot  escape  notice. 

Moreover,  the  party  occupying  the  battlefield 
must  proceed  to  the  interment  of  the  dead  after  a 
careful  examination  of  their  bodies,  and  after  having 
taken,  or  made  a  note  of,  all  marks  of  identity  found 
thereon.  These  marks  of  identity,  which  vary  ac- 
cording to  the  country,  are  to  be  sent  to  the  other 
belligerent  with  a  list  of  the  sick  and  wounded  which 
have  fallen  into  the  victor's  hands.  The  identification 
of  the  dead  is  a  necessary  measure  required  to  reduce 
the  anxiety  in  regard  to  those  who  have  disappeared 
during  the  war  as  well  as  to  obviate  the  civil  conse- 
quences which  result  from  uncertainty. 

The  Convention  of  1864,  actuated  by  a  sentiment 
more  humane  than  practical,  guaranteed  the  liberty 
of  such  of  the  inhabitants  as  gave  succor  to  the 
wounded;  every  wounded  man  taken  care  of  was  to 
serve  as  a  safe-guard  and  the  succoring  inhabitants 
were  to  be  exempt  from  the  billeting  of  troops  and 
from  the  payment  of  contributions  of  war.  This 
undertaking  (Art.  5),  was  impracticable,  and  as  a 
matter  of  fact,  was  not  put  into  effect.  So,  the  con- 
ference of  1906  suppressed  the  old  Art.  5;  but  still 
bearing  the  same  idea  in  mind,  specified  that  the 
military  authorities  shall  always  be  at  liberty  to  call 
upon  the  inhabitants  to  take  care  of  the  wounded 
and  sick,  in  which  case  they  may  allow  the  inhabi- 
tants certain  immunities. 

Sanitary  Formations  and  Establishments 

Chapter  II.— The  Distinction  to  be  Observed 
Between  the  Mobile  Formations  and  the  Fixed 
Establishments.— In  1906  the  expression  "sanitary 
formations  and  establishments"  was  adopted  to  take 


INTERNATIONAL    LAW  129 

the  place  of  that  used  in  the  convention  of  1864  in 
which  "all  hospitals  and  ambulances"  were  spoken 
of.  As  a  matter  of  fact,  there  has  been  no  accord  in 
regard  to  the  definition  of  these  two  last  classes  of 
establishments. 

Today  it  must  be  understood  that  the  general 
expression  "sanitary  formations  and  establishments" 
includes  at  the  same  time  the  sick  and  wounded,  the 
personnel  and  the  materiel  of  such  establishments  or 
formations. 

The  word  ' 'formation' '  has  reference  to  mobile 
formations,  the  composition  of  which  varies  accord- 
ing to  the  belligerent  country;  the  expression  is 
therefore  applicable  to  ambulances,  field  hospitals, 
hospitals  of  evacuation,  etc.,  all  of  which  are  sus- 
ceptible of  being  mobilized.  (In  the  U.  S.  Medical 
Service  no  distinction  exists  between  the  terms 
1  'Ambulances' ' — as  used  in  the  conventions— and 
"Field  Hospitals.") 

In  regard  to  the  fixed  establishments,  they  in- 
clude all  the  ordinary  hospitals. 

The  Respect  and  Protection  Due  to  Sani- 
tary Formations  and  Establishments.— The  above 
distinction  having  been  made,  the  general  idea, 
clearly  expressed  in  Article  6,  is  that  the  fixed  for- 
mations and  establishments  must  be  respected  and 
protected  by  the  belligerent.  The  expressions 
"neutral"  or  "neutralized"  which  appeared  in  the 
convention  of  1864,  have  been  avoided,  since, 
as  we  have  already  stated,  they  lead  to  misunder- 
standing, are  not  exact,  and  carry  with  them  inad- 
missable  sequences.  It  is  sufficient  to  say  that  the 
formations  and  establishments  shall  be  protected  and 
respected  (as  was  indicated  also  in  Article  1  of  the 
convention  of  1864) ;  respected  means  that  they  must 
not  be  fired  upon;  protected  means  that  in  case  of  the 
invasion  or  occupation  of  a  territory  by  the  enemy, 


130  SEVENTH    LECTURE 

the  latter  must  accord  to  them  its  protection.  Such 
is  the  status  to  which  the  two  expressions  above  cited 
have  relation. 

But  it  is  proper  to  remark  that  the  right  to  be 
respected  and  protected  is  subordinated  to  the 
obligation  placed  on  sanitary  formations  and  estab- 
lishments of  remaining  within  the  sphere  of  action 
assigned  to  them,  which  consists  in  occupying  them- 
selves solely  with  sanitary  duties.  The  protection 
ceases  if  they  are  used  for  the  purpose  of  committing 
harmful  acts  against  the  enemy.  It  is  thus,  for 
example,  that  the  admission  of  soldiers  who  are  well, 
into  a  hospital  with  a  view  to  facilitating  their  escape 
later,  constitutes  an  act  of  perfidy.  However,  the 
extent  of  this  restriction  must  not  be  exaggerated, 
and  care  was  taken  to  indicate  this  clearly  in  Article  8. 

In  preparing  this  article,  account  was  taken  from 
the  start  of  the  fact  that  in  the  various  armies  the 
same  methods  are  not  followed  to  insure  protection 
to  the  sanitary  service;  thus,  the  German  hospital 
corps  men  are  armed,  whereas  those  of  many  other 
countries  are  not.  However,  it  may  be  useful,  at  a 
given  time,  to  take  precautions  against  marauders 
and  pillagers  and  to  provide  for  this  purpose  a  picket 
to  guard  and  to  insure  respect  for  hospitals.  The 
second  paragraph  of  Article  2  of  the  convention  of 
1864,  however,  laid  down  that  "Neutrality  should 
cease  if  the  ambulances  and  hospitals  are  guarded  by 
a  military  force. "  As  a  result,  the  question  discussed 
was  that  of  determining  what  would  be  the  situation  of 
the  picket  guard  in  case  the  enemy  should  arrive? 
One  may  ask  if  this  picket  could  or  could  not  be  made 
prisoners?  In  accordance  with  the  above  cited  text 
of  1864,  there  might  be  a  doubt  on  this  point  which 
has,  however,  been  removed  in  a  very  sensible  way 
by  Articles  8  and  9  of  the  convention  of  1906.  It  was 
therein  decided  that  the  members  of  the  picket  should 


M 


INTERNATIONAL    LAW  131 

not  be  treated  as  prisoners  of  war,  because  they 
fulfil  an  important  mission  from  which  both  belli- 
gerents may  profit;  besides,  the  presence  of  the  picket 
is  particularly  necessary  in  the  interval  of  time 
which  separates  the  departure  of  the  belligerent  to 
whom  it  belongs  and  the  arrival  of  the  adversary. 
The  case  was  presented  quite  clearly  at  Mukden, 
where  acts  of  pillage  were  to  be  feared  if  the  sani- 
tary establishments  had  not  been  sufficiently  protected 
in  the  interval  between  the  evacuation  by  the 
Russians  and  the  occupation  by  the  Japanese.  Under 
these  conditions,  whether  the  hospital  corps  men  be 
armed  or  not,  soldiers  who  protect  the  hospitals 
should  be  treated  as  they  are— that  is,  not  made 
prisoners  of  war. 

Secondly,  the  attention  of  the  delegates  to  the 
Geneva  conference  of  1906  was  called  to  the  follow- 
ing fact,  which,  it  seems,  had  occurred:  There  was 
found  in  a  field  hospital,  arms  and  ammunition  taken 
from  the  wounded  or  sick,  which  for  lack  of  time 
had  not  yet  been  conveyed  to  the  army  depot,  with 
the  result  that  the  right  was  assumed  to  refuse  pro- 
tection to  the  hospital.  In  order  to  remove  this 
anomaly,  the  third  paragraph  of  Article  8  of  the 
convention  of  1906  provides  that  the  fact  "That  arms 
or  cartridges,  taken  from  the  wounded  and  not  yet 
turned  over  to  proper  authorities,  are  found  in  the 
formation  or  establishment,"  shall  not  serve  to 
deprive  the  formation  of  the  protection  granted  to  it 
by  Article  6. 

Of  the  Personnel 

Chapter  III.— Definition  of  the  Official 
Personnel  Which  May  Not  be  Made  Prisoners 
of  War. — In  that  which  regards  the  personnel,  a 
very  general  formula  was  adopted  which  is  adaptable 


132  SEVENTH    LECTURE 

to  the  organization  of  the  various  armies.  The  text 
of  Article  2  of  the  convention  of  1864  had  clearly 
become  inapplicable  to  France,  for  instance,  since  it 
used  the  term  "In tendance/ '  a  corps  which  today  is 
no  longer  charged  with  the  health  service  in  that 
country,  whereas  in  some  other  countries  the  "Inten- 
dance"  includes  such  service.  The  United  States 
has  nothing  in  its  military  system  which  corresponds 
to  the  "Intendance"  unless  it  be  the  new  Q.  M. 
organization,  nor  so  far  as  we  know  has  England  such 
a  military  branch.  It  is  for  this  reason  that  the  first 
paragraph  of  Article  9  was  framed  as  follows: 

"The  personnel  charged  exclusively  with  the 
removal,  transportation,  and  treatment  of  the  sick 
and  wounded,  as  well  as  with  the  administration  of 
sanitary  formations  and  establishments,  and  the 
chaplains  attached  to  armies,  shall  be  respected  and 
protected  under  all  circumstances.  If  they  fall  into 
the  hands  of  the  enemy  they  shall  not  be  considered 
as  prisoners  of  war." 

Under  this  wording  mention  is  made  of  the  per- 
sonnel exclusively  charged  with  the  treatment  of  the 
sick  and  wounded,  because  there  is  in  existence  an- 
other personnel  which  is  officially  attached  to  the 
service  of  transporting  the  wounded,  but  which  plays 
the  role  of  both  litter  bearer  and  combatant.  For 
the  reason  already  stated  the  use  of  the  expression 
"neutral",  applied  to  the  personnel  by  the  conven- 
tion of  1864,  has  been  avoided. 

We  have  seen  above  the  signification  to  be  given 
to  the  words  "respected"  and  "protected".  (They 
must  not  be  fired  upon,  etc.).  The  provision  to  which 
the  greatest  importance  is  attached  is  that  which 
forbids  the  making  of  the  personnel  prisoners,  and 
which  thus  prevents  a  return  of  the  deplorable 
abandonment  of  the  wounded  on  the  battlefield,  such 
as  was  seen  at  Koniggr&tz. 


jm 


INTERNATIONAL    LAW  133 

However,  the  personnel  of  sanitary  formations 
may  be  held  for  a  greater  or  lesser  time  by  the  enemy 
into  whose  hands  they  have  fallen;  we  will  later 
discuss  the  reasons  for  this  measure. 

The  Assimilation  op  the  Personnel  of 
Volunteer  Aid  Societies  to  the  Official  Per- 
sonnel.—In  article  9,  which  we  have  just  examined, 
there  is  only  question  of  the  official  personnel  belong- 
ing to  the  medical  service  of  the  army.  It  has  been 
necessary  also  to  take  into  account  the  personnel  of 
the  volunteer  aid  societies,  with  all  the  more  justice 
since  the  Geneva  convention  was  due  to  the  initiative 
of  these  private  societies;  nevertheless  in  1864  the 
most  complete  silence  in  respect  to  them  was  observed. 
In  regard  to  this,  it  is  proper  to  remark  that  the 
French  government  of  that  time,  although  particu- 
larly favoring  the  adoption  of  the  projected  conven- 
tion, had  given  a  formal  order  to  its  delegates  not  to 
sign  it  if  it  contained  any  mention  of  aid  societies. 
Such  was  the  feeling  in  1864.  This  can  be  understood 
because  the  aid  societies  were  still  in  an  embryonic 
state  and  it  was  impossible  to  form  a  precise  idea  of 
their  method  of  organization  or  work.  Some  thought 
that  these  societies  should  have  an  autonomous 
existence  with  no  intervention  on  the  part  of  the 
government;  others  considered  this  idea  inadmissable 
in  view  of  the  fact  that  aid  societies  can  do  useful 
work  only  under  the  superior  direction  of  the  govern- 
ment on  which  they  depend. 

However  this  may  be,  what  was  to  be  concluded 
from  the  silence  of  the  convention  of  1864?  The  aid 
societies  were  very  much  concerned  in  regard  to  it, 
to  an  extent  which  led  some  of  them  to  think  that 
they  had  no  right  to  the  benefits  of  the  convention. 
We  consider  that  this  idea  was  erroneous,  because 
the  aid  societies  attached  to  their  government  and 
working  under  its  control  are  in  a  measure  part  of 


134  SEVENTH    LECTURE 

its  official  personnel;  and  as  a  result  they  must  be 
allowed  to  participate  in  the  benefits  of  the  protection 
and  enjoy  the  immunity  required  by  the  convention. 
The  question  does  not  seem  to  admit  of  doubt  to  us, 
but  it  resulted  from  the  silence  of  the  convention  of 
1864,  that  aid  societies  could  not  undertake  to  create 
for  themselves  an  independent  status,  since  their 
right  to  inviolability,  depended  on  their  coming, 
after  a  fashion,  into  the  cadres  of  the  army  (and  it 
is  still  so). 

The  Organization  of  Aid  Societies  is  a 
Question  of  Domestic  Arrangement.- Every 
country  is  free  to  accept  or  not  the  help  of  private 
charity;  if  it  accepts  it  the  government  must  give 
the  personnel  a  regular  authorization  and  charge  it 
with  some  mission.  Generally  speaking,  aid  societies 
are  excluded  from  service  at  the  front.  This  rule  is 
laid  down  for  instance  by  the  French  government. 
It  was  desired  to  so  hold  expressly  in  the  Geneva 
Convention  of  1906,  but  the  point  was  set  aside,  and 
properly  so,  it  being  clear  that  a  belligerent  may 
need  aid  societies,  even  on  the  battlefield.  There  are 
some  persons  who  have  particular  ideas  in  regard  to 
the  role  of  aid  societies.  Thus  what  we  may  call  the 
senior  French  society,  the  "Societe  de  Secours  aux 
Blesses* '  has  for  its  avowed  purpose  to  render  aid  on 
the  battlefield  and  this  notwithstanding  the  military 
regulations  of  the  French  government.  The  Ameri- 
can National  Red  Cross,  as  its  charter  shows,  has  in 
view  four  purposes:  First,  to  furnish  volunteer  aid  to 
the  sick  and  wounded  of  armies  in  time  of  war; 
second,  "to  perform  all  the  duties  devolved  upon  a 
national  society  by  each  nation  which  has  acceded' ' 
to  the  Geneva  treaty;  third,  to  act  in  matters  of 
voluntary  relief  and  in  accord  with  the  military  and 
naval  authorities  as  a  medium  of  communication  be- 
tween the  people  of  the  United  States  and  their  army 


INTERNATIONAL    LAW  135 

and  navy;  and  fourth,  to  continue  and  carry  on  a 
system  of  national  and  international  relief  in  time  of 
peace.  What  is  meant  by  the  second  purpose  is  not 
clear  since  the  only  mention  of  volunteer  aid  societies 
in  the  treaty  of  1864  or  rather  in  the  addition  thereto, 
has  connection  with  hospital  ships.  (The  American 
Red  Cross  was  incorporated  prior  to  1906.)  We  must 
presume  that  what  is  meant,  is  that  it  shall  perform 
such  duties  as  are  imposed  upon  it  by  the  United 
States.  So  far  our  government  has  imposed  no 
duties  upon  the  American  Red  Cross  except  such  as 
have  been  accepted  by  that  corporation  in  its  charter. 

To  sum  up,  the  organization  of  these  societies  is 
a  question  of  national  and  not  of  international 
regulation. 

Conditions  for  the  Cooperation  of  Aid 
Societies  in  the  Sanitary  Service  of  Armies.— 
This  being  set  forth,  let  us  see  what  the  first  para- 
graph of  Art.  10  of  the  convention  of  1906  says: 

"The  personnel  of  volunteer  aid  societies,  duly 
recognized  and  authorized  by  their  own  goverments, 
who  are  employed  in  the  sanitary  formations  and 
establishments  of  armies,  are  assimilated  to  the  per- 
sonnel contemplated  in  the  preceding  article,  upon 
condition  that  the  said  personnel  shall  be  subject  to 
military  laws  and  regulation s." 

From  what  has  been  said  it  follows  that  each 
government  is  left  free  to  arrange  for  the  cooperation 
of  the  personnel  of  aid  societies  specially  authorized 
by  such  government.  But  this  personnel  must  be 
subject  to  military  laws  and  regulations.  This  last 
requirement  seems  indispensable  because  there  is  a 
close  correlation  between  the  duties  and  the  rights  of 
the  personnel  in  question;  a  personnel  having  rights, 
without  being  held  to  certain  duties,  might  be  danger- 
ous even  to  the  government  which  employs  it.  In 
1870  abuses  were  observed,  and  if  things  were  other- 


136  SEVENTH    LECTURE 

wise  individuals  might  practice  espionage  or  escape 
from  active  military  service. 

So  far  as  concerns  the  United  States  we  have  the 
Act  of  April  24,  1912,  published  to  the  Army  in  G.  0. 
16,  W.  D.  1912,  wherein  it  is  provided  that  in  time  of 
war,  or  when  war  is  imminent,  and  the  President 
deems  it  necessary,  he  is  authorized  to  accept  the  ser- 
vices of  the  Red  Cross  '  'under  the  sanitary  services 
of  the  Army  and  Navy  in  conformity  with  such  rules 
and  regulations  as  he  may  prescribe/ '  The  act  further 
provides  for  the  transportation  and  subsistence  of  the 
personnel  of  the  Red  Cross  under  certain  conditions 
"as  civilian  employees  employed  with  the  said  forces' ' 
and  that  Red  Cross  supplies  may  be  accepted  by  the 
government  as  a  gift.  Beyond  its  national  charter 
and  the  Act  just  mentioned,  the  American  National 
Red  Cross  has  no  official  recognition  in  this  country. 

The  Principle  of  the  Organization  of  a 
Single  Aid  Society  for  each  Country. —In  most 
countries  the  advice  given  by  the  Geneva  conference 
of  1863  has  been  followed.  That  is  to  say,  there  is  in 
each  country  but  one  aid  society  with  a  central  com- 
mittee having  authority  to  represent  the  whole  of  the 
society  either  in  relations  with  its  own  government 
or  in  relations  with  foreign  gatherings. 

The  Role  of  the  International 
Committee  of  Geneva 

We  have  pointed  out  the  role  played  by  the  in- 
ternational committee  which  was  formed  at  Geneva 
to  urge  the  adoption  of  the  convention  of  1864.  This 
committee  has  continued  to  exist  and  still  has  the 
same  president  as  at  the  beginning,  Mr.  Gustave 
Moynier,  whose  work  cannot  be  too  highly  praised. 
Although  international,  the  committee  recruits  itself 
from  the  Genevese  and  finds  itself,  in  a  measure,  in 


INTERNATIONAL    LAW  137 

touch  with  the  convention  of  1864  as  well  as  with 
the  revised  convention  of  1906.  Its  unofficial  position 
leaves  to  the  committee  much  greater  independence 
and  initiative,  and  permitted  it  to  render  great  ser- 
vices when  the  question  was  presented  of  extending 
the  rules  of  the  convention  to  maritime  war,  of  caus- 
ing them  to  be  revised  in  1906,  and  of  applying  them 
in  certain  cases  where  the  committee  was  chosen  as 
an  intermediary  by  belligerents  themselves.  The 
committee,  serves,  besides,  as  a  link  between  the 
various  national  aid  societies.  It  publishes  an  inter- 
national bulletin  containing  all  the  information  of  use 
to  these  societies  in  regard  to  things  done,  projects, 
etc.  In  addition,  for  about  twenty  years  it  has  been 
organizing  periodical  conferences  of  Red  Cross  Socie- 
ties. These  conferences  meet,  sometimes  in  one 
country,  sometimes  in  another.  They  have  been  held: 
In  Rome  (1892),  in  Vienna  (1897),  in  St.  Petersburg 
(1902),  in  London  (1907),  and  in  Washington,  D.  C. 
(1912). 

It  is  well  to  remark  that  the  international  com- 
mittee at  Geneva  is  not  an  aid  society;  that  it  is  dis- 
tinct from  the  aid  society  existing  in  Switzerland, 
and  that,  therefore,  it  is  not  attached  in  any  way  to 
the  Swiss  Federal  government  or  to  any  other  gov- 
ernment. 

Position  of  the  Volunteer  Aid  Societies.  — 
The  idea  of  those  who  may  be  said  to  have  originated 
the  Red  Cross  movement  was  that  whatever  the 
branches  might  be,  the  Red  Cross  volunteers  of  a 
given  country  should  be  united  to  the  extent  that 
they  should  be  represented  by  a  single  body  or  com- 
mittee, which  would  be  in  close  touch  with  the  gov- 
ernment and  be  responsible  in  time  of  peace  for  the 
international  undertakings  of  the  Red  Cross.  We 
are  not  concerned  in  these  lectures  with  the  working 
of  the  aid  societies,  from  a  domestic  and  charitable 


138  SEVENTH    LECTURE 

point  of  view.  But  from  an  international  point  of 
view  it  would  seem  almost  a  necessity  that  each 
government  shall  have  to  do  with  but  one  organi- 
zation. If  we  imagine  dozens  of  charitable  so- 
cieties all  having  the  same  general  aims,  clamoring 
in  time  of  war  for  the  recognition  which  we  will  see 
later,  is  a  prerequisite  to  their  being  allowed  to  succor 
the  sick  and  wounded  of  the  army,  it  will  be  obvious 
that  confusion  must  result.  By  the  Act  of  June  23, 
1910,  amending  the  charter  of  the  American  National 
Red  Cross,  Congress  would  appear  to  have  recognized 
that  institution  as  the  one  organization  with  which 
the  government  will  deal.  The  act,  however,  is  not 
entirely  clear  as  it  does  not  forbid  to  all  persons  not 
members,  the  use  of  the  Red  Cross  emblem,  except 
in  certain  cases.  Recognition  is  further  given  in  the 
the  Act  of  March  3,  1911,  wherein  the  Secretary  of 
War  is  authorized  to  detail  an  officer  of  the  Medical 
Corps  to  take  charge  of  the  first  aid  department  of 
the  American  Red  Cross. 

Whatever  legislation  there  may  be  in  regard  to 
the  use  of  the  Red  Cross  emblem,  applies  we  must  re- 
member, only  to  the  emblem  within  the  jurisdiction 
of  the  state  which  legislates  and  does  not  serve  as 
authority  for  a  Red  Cross  volunteer  society  to  use  the 
emblem  internationally.  It  may,  however,  serve  as 
the  preliminary  step,  that  of  recognition  by  the  home 
government.  We  have  considered  the  requirements 
demanded,  if  a  volunteer  aid  society  is  to  be  allowed 
to  assist  the  medical  department  in  an  international 
conflict.  It  must  be  duly  recognized  and  authorized 
by  its  own  government,  be  employed  in  the  sanitary 
formations  and  establishments  of  armies  and  be  sub- 
ject to  military  laws  and  regulations. 

We  will  now  consider  the  question  of  the  aid 
societies  of  neutrals  rendering  service  to  wounded 
and  sick  belligerents. 


international   law  139 

Conditions  Under  Which  Neutral  Aid  Socie- 
ties May  Lend  Their  Assistance  to  a  Belliger- 
ent.—It  has  happened,  during  the  last  twenty-five 
years,  that  aid  societies  of  neutral  countries 
have  been  disposed  to  go  to  the  aid  of  a  bel- 
ligerent; as  a  result  it  has  been  necessary, 
in  order  to  avoid  misunderstandings,  to  indi- 
cate the  conditions  under  which  such  societies 
may  work.  A  priori,  this  measure  would  seem  a 
trifle  naive,  but  it  is,  nevertheless,  indispensable. 
There  have  been  occasions  when  a  society  which  has 
been  specially  organized  for  the  emergency,  or  an 
existing  society,  has  arrogated  the  right  to  send  a 
field  hospital  into  a  belligerent  country,  without 
knowing  whether  it  would  be  agreeable  to  the  latter. 
For  example:  On  the  occasion  of  the  Greco-Turkish 
war,  in  1897,  a  French  field-hospital  was  ready  to 
start  and  the  president  of  the  aid  society  was  only 
giving  thought  to  the  determination  of  the  question 
of  the  flag  to  be  raised.  Notified  indirectly  of  the 
contemplated  departure,  the  French  minister  of 
foreign  affairs  took  the  wise  action  of  telegraphing 
to  his  agent  at  Athens  in  order  to  forwarn  the  Greek 
government.  The  answer  arrived,  the  evening  be- 
fore the  date  which  had  been  fixed  upon  by  the 
organizers  for  the  departure.  It  was,  for  them  a 
disillusionment.  The  Greeks  declined  the  offer  of 
the  personnel,  but  declared  that  they  would  accept 
with  thanks  gifts  of  money  or  materiel. 

As  a  rule,  belligerents  do  not  care  to  receive 
foreign  field  hospitals.  Another  example  presents 
itself.  During  the  Russo-Japanese  war  the  French 
"Societe  de  Secours  aux  Blesses' '  had  prepared  two 
large  field  hospitals  to  go  to  the  assistance  of  the 
Russians.  But  the  latter  preferred  that  they  should 
not  start,  accepting  only  financial  aid  (250,000  frs.) 


140  SEVENTH    LECTURE 

which  served  for  the  equipment  of  a  hospital  ship 
("L'OreD. 

In  short,  taking  into  account  what  we  have  said, 
Article  2  of  the  Geneva  Convention  of  1906  explains 
that: 

"A  recognized  society  of  a  neutral  state  can  only 
lend  the  services  of  its  sanitary  personnel  and  for- 
mations to  a  belligerent  with  the  prior  consent  of  its 
own  government  and  the  authority  of  such  belliger- 
ent. The  belligerent  who  has  accepted  such  assist- 
ance is  required  to  notify  the  enemy  before  making 
any  use  thereof." 

Case  Where  the  Sanitary  Personnel  Falls 
Into  the  Power  of  the  Enemy.— The  position  of 
the  official  personnel,  or  that  which  is  assimilated  to 
it,  is  laid  down  in  Article  12.  We  have  seen  that 
they  are  not  to  be  made  prisoners  of  war;  but  they 
may  fall  into  the  hands  of  the  enemy.  This  case  is 
likely  to  present  itself  frequently  on  the  battlefield, 
and  Article  1  prescribes  that  the  belligerent  who  is 
obliged  to  abandon  his  sick  and  wounded  to  his  ad- 
versary shall  leave  with  them  as  much  of  his  personnel 
and  materiel  as  military  circumstances  will  permit, 
to  aid  in  caring  for  them.  The  question  which 
presents  itself,  is  to  know  for  how  long  a  time  this 
field  hospital  personnel  is  to  remain  in  the  power  of 
the  enemy.  It  is  clearly  impossible  to  fix  a  deter- 
mined period.  A  field  hospital  may  be  held  for  the 
time  necessary  for  the  enemy  itself  to  be,  in  a 
measure,  in  a  position  to  assure  care  to  the  wounded 
by  means  of  its  own  resources  in  personnel  and 
materiel.  On  the  other  hand,  it  is  possible  that 
there  will  be  military  objections  to  allowing  to  depart 
a  field  hospital,  the  personnel  of  which  may  have 
acquired  involuntarily  or  otherwise,  military  infor- 
mation of  its  enemy.  The  enemy  may  be  brought 
to  the  necessity,  therefore,  of  imposing  an  itinerary 


INTERNATIONAL    LAW  141 

which  will  avoid  the  direct  return  of  the  field  hospital 
to  its  proper  station.  It  may  result  that  certain 
abuses  will  occur.  These  were  numerous  in  1870. 
The  roundabout  routes  ordered  for  the  returning  field 
hospitals  did  not  always  seem  justifiable,  but  the 
reasons  which  cause  an  enemy  to  act  are  not  always 
easy  to  understand.  The  settled  principle,  and  one 
which  leaves  no  doubt,  is  that  the  belligerent  has  the 
right  to  fix  the  time  of  the  return  of  the  field  hospital 
as  well  as  the  itinerary  which  it  must  follow.  Here 
is  the  text  of  Article  12  of  the  convention  of  1906: 

"Persons  described  in  Articles  9,  10,  and  11,  will 
continue  in  the  exercise  of  their  functions  under  the 
direction  of  the  enemy,  after  they  have  fallen  into 
his  power. 

1  'When  their  assistance  is  no  longer  indispensable 
they  will  be  sent  back  to  their  army  or  country, 
within  such  period  and  by  such  route  as  may  accord 
with  military  necessity.  They  will  carry  with  them 
such  effects,  instruments,  arms  and  horses  as  are 
their  private  property." 


EIGHTH  LECTURE 


Pay  of  the  Official  Personnel 

^^HE  question  of  the  pay  of  the  personnel  has  also 
y_y  been  considered.  Here  clearly,  a  difference 
must  be  made  between  the  official  personnel 
attached  to  the  military  service  and  that  of  the  aid 
societies;  pay  has  no  relation  to  the  latter  personnel. 
Everyone  was  of  the  opinion  that  pay  was  due  to  the 
first  mentioned,  but  there  was  grave  doubt  as  to 
what  the  pay  should  be.  Two  systems  could  be  sug- 
gested (even  three): 

(a)  The  personnel  would  have  a  right  to  the  pay 
which  it  receives  in  its  own  army,  its  situation  not 
having  changed.  To  this  objection  was  made,  on 
the  ground  that  it  might  seem  hard  for  the  enemy  to 
be  obliged  to  give  to  the  sanitaty  personnel  fallen 
into  its  power  a  higher  pay  than  that  which  was  re- 
ceived by  its  own  army. 

(b)  The  second  idea  put  forth,  consists  in  con- 
sidering, after  a  fashion,  the  personnel  as  a  part, 
temporarily,  of  the  enemy  army,  and  to  pay  it  at  the 
same  rate  and  under  the  same  rules  as  are  in  force 
for  that  army.  This  idea  won  out,  although  attention 
was  called  to  the  fact  that  in  certain  cases  this  method 
of  payment  might  be  unfavorable  to  those  interested. 
For  example,  a  European  or  an  American  personnel 
would  hardly  be  satisfied  under  the  system  of  the 
Chinese  army,  which  restricts  its  payments  to  a 
simple  bowlful  of  rice.  However  this  may  be,  it  is 
rather  curious  to  observe  that  the  attempted  solution 
in  Art.  13  of  the  convention  of  1906,  is  in  opposition 
to  that  which  had  been  adopted,  in  1899,  at  The  Hague, 

143 


144  EIGHTH    LECTURE 

for  the  adaptation  to  maritime  war  of  the  principles 
of  the  convention  of  Geneva  of  August  22,  1864  (Art. 
7:  full  enjoyment  of  their  salaries).  In  1907,  however, 
at  the  Second  Peace  Conference,  the  two  texts,  cover- 
ing both  war  on  land  and  war  at  sea,  were  brought 
into  accord  (the  same  allowances  and  pay  as  those 
received  by  persons  of  the  same  grade  in  the  army 
or  navy  of  the  enemy  belligerent,  according  to  the 
case). 

(c)  The  third  system  would  consist  in  not  paying 
the  personnel  at  all  and  leaving  it  to  its  country  to 
give  it  its  back  pay  on  its  return. 

Of  the  Materiel 

Chapter  IV.— Respect  Due  to  the  Materiel 
of  Mobile  Sanitary  Formations.— This  chapter 
sets  forth  the  essential  difference  between  the  fixed 
establishments  and  the  mobile  sanitary  formations. 
The  materiel  of  the  latter  is  respected;  it  was  thought 
it  would  be  impossible  for  a  field  hospital  to  work  if 
its  materiel  was  taken  away  from  it.  This  decision 
is  in  derogation  of  the  ordinary  principles  of  inter- 
national law,  since  it  establishes  a  rule  that  the 
materiel  of  field  hospitals  is  not  a  good  prize.  Let 
us  read  Art.  14  of  the  convention  of  1906. 

"If  mobile  sanitary  formations  fall  into  the 
power  of  the  enemy,  they  shall  retain  their  materiel, 
including  the  teams,  whatever  may  be  the  means  of 
transportation  and  the  conducting  personnel.  Com- 
petent military  authority,  however,  shall  have  the 
right  to  employ  it  in  caring  for  the  sick  and  wounded. 
The  restitution  of  the  materiel  shall  take  place  in 
accordance  with  the  conditions  prescribed  for  the 
sanitary  personnel,  and  as  far  as  possible,  at  the 
same  time." 

The  Materiel  of  Fixed  Establishments  is 
Subject  to  the  Ordinary  Rules  of  War.— Where 


INTERNATIONAL    LAW  145 

fixed  establishments  are  concerned  (military  hospitals, 
or  depots  of  medical  materiel),  the  ordinary  law  of 
war  applies  and  the  materiel  is  considered  as  being 
good  prize  or  booty. 

Art.  15  in  regard  to  this  reads  as  follows: 

"Buildings  and  materiel  pertaining  to  fixed 
establishments  shall  remain  subject  to  the  laws  of 
war,  but  cannot  be  diverted  from  their  use  so  long 
as  they  are  necessary  for  the  sick  and  wounded. 
Commanders  of  troops  engaged  in  operations,  how- 
ever, may  use  them,  in  case  of  important  military 
necessity,  if,  before  such  use,  the  sick  and  wounded 
who  are  in  them  have  been  provided  for.,, 

A  comparison  of  Articles  14  and  15,  above  quoted, 
shows  the  great  necessity  which  exists  for  distin- 
guishing field  hospitals  from  fixed  hospitals.  We 
may  cite,  in  regard  to  this,  an  instructive  anecdote 
which  relates  to  the  siege  of  Metz.  During  the  two 
days  which  preceded  the  capitulation,  the  field  hos- 
pitals were  withdrawn  into  the  place,  and  the  greater 
part  of  their  materiel  was  distributed  among  the 
fixed  hospitals.  It  is  clear  that  in  order  to  prevent 
the  materiel  from  falling  into  the  enemy's  hands,  the 
contrary  should  have  been  done.  It  has  never  been 
known  whether  this  action  was  due  to  bad  faith  or 
to  ignorance,  but  in  either  case  it  was  an  extra- 
ordinary performance. 

Respect  for  the  Materiel  of  Civil  Hos- 
pitals.—Civil  hospitals,  whether  diverted  or  not  to 
the  needs  of  the  army,  enjoy  the  benefit  of  Article 
56  of  The  Hague  regulations  regarding  the  laws  and 
customs  of  war  on  land;  they  are  therefore  to  be 
respected. 

Respect  Due  to  the  Materiel  of  the  Fixed 
Establishments  of  Aid  Societies.— It  has  been 
more  difficult  to  determine  the  question  of  materiel  of 
aid  societies  found  in  fixed  establishments  (in  regard 


148  EIGHTH    LECTURE 

to  field  hospitals,  see  Article  14).  A  controversy 
was  started  on  the  point  of  whether  this  materiel,  of 
considerable  importance,  should  be  respected.  Some 
held  that  such  property  is  a  good  prize,  for  otherwise 
it  would  be  easy  for  a  government  to  cause  its  own 
materiel  to  escape  the  laws  of  war  by  placing  it 
under  the  cover  of  aid  societies.  The  partisans  of 
the  opposite  opinion  (inclining  towards  the  recogni- 
tion of  the  respect  due  the  materiel  of  aid  societies) 
showed  that  aid  societies  had  a  difficult  existence, 
and  that  moreover,  the  aid  granted  represented  an 
effort  of  private  charity  which  should  not  be  dis- 
couraged. They  added,  to  strengthen  their  argu- 
ment, that  it  would  be  a  step  backward  to  admit 
that  the  materiel  of  aid  societies  might  be  captured. 
As  illustrative  of  this  the  surgeons  who  took  part  in 
the  Russo-Japanese  war  narrated  to  the  conference 
the  following  incident:  At  Mukden  there  were  es- 
tablished four  or  five  hospitals,  of  which  only  one 
was  a  military  hospital,  the  others  belonging  to  the 
Russian  Red  Cross  (which  disposes  of  enormous  re- 
sources, from  taxes  and  appeals  to  private  charity  in 
all  its  forms).  On  their  arrival  the  Japanese  allowed 
the  materiel  of  the  four  Red  Cross  hospitals  to  be 
carried  off,  it  being  claimed  as  private  property. 

The  Japanese  must  have  later  regretted  this 
generosity,  since  they  voted  in  the  conference  of 
1906  against  the  principle  of  respect  for  such 
property,  the  principle  was,  however,  adopted  by  a 
large  majority,  though  it  was  necessary  to  urge  the 
point  strongly. 

Finally  it  was  objected  that  the  enemy  arriving 
in  a  town  might  have  immediate  need  of  the  sanitary 
materiel,  and  the  question  was  presented  of  whether 
it  could  touch  the  valuable  stores  of  aid  societies. 
In  order  to  disarm  opposition,  attention  was  called 


INTERNATIONAL    LAW  147 

to  the  fact  that  so  long  as  it  was  private  property 
this  materiel  was  subject  to  the  right  of  requisition. 

Here  is  the  text  of  Article  16: 

"The  materiel  of  aid  societies  admitted  to  the 
benefits  of  this  convention,  in  conformity  to  the  con- 
ditions therein  established,  is  regarded  as  private 
property  and,  as  such,  will  be  respected  under  all 
circumstances,  save  that  it  is  subject  to  the  recog- 
nized right  of  requisition  by  belligerents  in  conformity 
to  the  laws  and  usages  of  war." 

To  close  this  chapter,  it  is  well  to  call  attention 
to  the  fact  that  the  right  of  requisition  will  not  be 
exercised  as  freely  in  the  future  as  it  has  been  exer- 
cised in  the  past,  because  of  an  amendment  to  the 
old  rules,  contained  in  Article  52  of  the  rules  of  The 
Hague  of  1907,  which  provides  for  the  ultimate  pay- 
ment for  property  taken. 

Of  Convoys  of  Evacuation 

Chapter  V.— Position  of  the  Personnel  and 
Materiel  of  Convoys  of  Evacuation.— This 
chapter  puts  into  effect,  in  regard  to  convoys  of  evacu- 
ation, the  preceding  agreements  (treatment  of  sick  and 
wounded,  situation  of  the  personnel,  and  the  dispo- 
sition to  be  made  of  the  materiel).  There  is  clearly 
a  case  here  for  the  application  of  the  rules 
established  under  those  regulations.  If  an  enemy 
meets  a  convoy  of  evacuation  of  the  adverse  belliger- 
ent he  may  make  prisoners  of  war  of  the  sick  and 
wounded.  This  is  his  general  right;  but  most 
frequently  he  has  no  interest  in  so  doing  except  in 
the  case  where  the  convoy  includes  an  officer  whose 
capture  would  appear  important.  Next,  the  enemy 
must  respect  and  protect  the  convoy;  he  may,  how- 
ever, disintegrate  it,  if  he  thinks  it  necessary,  on 


148  EIGHTH    LECTURE 

condition  that  he  charge  himself  with  the  duty  of 
caring  for  the  sick  and  wounded.  Finally,  he  must 
respect  the  personnel  and  materiel  by  observing  the 
rules  contained  in  Chapters  3  and  4. 

Of  the  Distinctive  Emblem 

Chapter  VI.— Heraldic  Emblem  of  the  Red 
Cross.— We  have  arrived  at  the  distinctive  emblem 
of  the  sanitary  service  of  armies;  this  is  the  Red 
Cross,  which  in  no  wise  presents  the  character  of  a 
religious  emblem.  This  point  was  insisted  upon  in 
1906;  the  Christian  Cross  has  generally  unequal  arms, 
whereas  the  Red  Cross  is  composed  of  five  equal 
squares  (although  mention  of  this  was  avoided),  and 
constitutes  a  reversal  of  the  Swiss  colors.  It  was 
desired  to  do  honor  to  Switzerland  and  to  take  the 
emblem  of  a  neutral  and  respected  country,  which  is 
entirely  proper.  In  order  to  accentuate  its  meaning, 
Article  18  of  the  convention  of  1906  is  worded  as 
follows: 

"Out  of  respect  to  Switzerland,  the  heraldic  em- 
blem of  the  red  cross  on  a  white  ground,  formed  by 
the  reversal  of  the  federal  colors,  is  continued  as  an 
emblem  and  distinctive  sign  of  the  sanitary  service 
of  armies/ ' 

At  the  outset  of  the  Geneva  convention  of  1864 
no  criticism  was  made  in  regard  to  the  adoption  of 
this  emblem.  Turkey  itself  gave  its  adhesion  in 
1865.  The  difficulties  began  in  1876;  during  the  war 
with  Servia,  Turkey  pretended  that  the  Red  Cross 
was  a  religious  emblem  detested  by  its  troops,  who 
were  not  disposed  to  respect  the  emblem  and  it  sub- 
stituted, of  its  own  motion,  a  crescent  for  the  cross. 
There  was  here  a  flagrant  violation  of  the  Geneva 
Convention;  besides,  the  crescent  has  an  aggressive 
character  much  more  strongly  accentuated  than  has  the 
cross.    At  the  time  of  the  Russo-Turkish  war  consid- 


INTERNATIONAL    LAW  149 

eration  was  given  to  this  situation,  and  through  the 
intermediation  of  Germany  an  extraordinary  modus 
vivendi  was  agreed  upon.  Turkey  assumed  the  obli- 
gation to  respect  the  Red  Cross,  on  the  Russian  field 
hospitals,  but  was  authorized  to  raise  over  its  own  a 
crescent.  The  whole  thing  was  most  peculiar,  be- 
cause how  can  we  understand  that  Turkey,  which  de- 
clared that  it  could  not  obtain  respect  for  the  Red 
Cross  when  it  appeared  over  its  own  field  hospitals, 
could  reach  a  better  result  in  regard  to  the  field  hos- 
pitals, of  its  enemy. 

This  same  modus  vivendi  was  tolerated  during 
the  Greco-Turkish  war,  but  the  field  hospitals  were  a 
little  better  respected. 

In  1899,  at  The  Hague  Conference,  when  the 
application  of  the  Geneva  Convention  to  maritime 
war  was  under  consideration,  an  Ottoman  delegate 
asked  that  Turkey  might  use  the  crescent,  but  this 
petition  was  set  aside  on  a  motion  that  it  was  out  of 
order  since  the  question  was  to  extend  the  conven- 
tion and  not  to  modify  it,  but  that  in  case  of  a  re- 
vision, Turkey  might  make  such  propositions  as 
appeared  to  it  proper.  In  1906,  the  time  for  the 
revision  arrived,  but  the  Turks  abstained  from 
coming  to  the  conference,  with  the  result  that  during 
the  discussion  of  the  various  articles  there  was  no 
question  of  modifying  (for  certain  powers)  the  dis- 
tinctive emblem;  and  yet  there  were  at  the  conference 
non-christian  states  such  as  Japan,  China,  Persia  and 
Siam.  But  on  the  very  day  on  which  the  convention 
was  to  be  signed,  a  rumor  spread  that  Persia  did  not 
wish  to  sign  except  under  a  reservation  in  regard  to 
Article  18.  What  was  to  be  done?  In  order  to  avoid 
embarrassment  the  signature  was  admitted  with  a 
reservation;  as  a  result  Persia  (and  also  Siam)  may 
have  an  emblem  other  than  the  Red  Cross. 


160  EIGHTH    LECTURE 

We  have  now  reached  The  Hague  in  1907,  where 
the  question  was  on  the  adaptation  of  the  Geneva 
convention  to  maritime  war.  This  time  the  Turks 
bring  forward  their  project  of  modification.  Clearly, 
it  was  a  little  late.  Acting  upon  the  advice  given 
him,  the  Turkish  delegate  did  not  make  a  formal 
proposition,  but  contented  himself  with  reading  his 
motion,  of  which  the  conference  took  note.  Due  to 
this  fact,  the  Geneva  Convention  of  1906  is  not  mod- 
ified but  it  must  be  admitted  that  there  is  a  moral 
engagement  by  the  governments  to  respect  the  cres- 
cent on  the  Turkish  field  hospitals,  since  Turkey 
engages  itself  to  respect  the  Red  Cross.  Certain  of 
the  delegates  seemed  to  regret  that  the  question  was 
not  definitely  settled  by  the  general  substitution  of  a 
red  star,  for  example,  in  place  of  the  red  cross,  criti- 
cised by  certain  recalcitrants.  This  regret  was 
somewhat  tardy. 

Precautions  to  be  Taken  Against  Abuses. 
—In  order  that  the  wearing  or  display  of  the  distinc- 
tive emblem  shall  not  lead  to  abuses,  various  precau- 
tions have  had  to  be  taken.  For  the  personnel,  the 
brassard  must  be  delivered  and  stamped  by  a  proper 
military  authority.  In  order  to  dispel  doubts  trouble 
has  been  taken  to  specify  that  this  brassard  is  to  be 
worn  on  the  left  arm  and  that  it  must  be  fixed.  As 
regards  the  flag,  it  can  only  be  raised  over  sanitary 
formations  and  establishments  which  military  au- 
thority orders  to  be  respected,  and  with  the  consent 
of  such  authority.  This  disposition  is  of  a  nature  to 
prevent  the  return  of  earlier  abuses.  Thus,  at  Dijon, 
in  1870,  a  large  number  of  inhabitants  had  decorated 
their  windows  with  white  flags  bearing  red  crosses, 
hoping  to  be  excused  from  lodging  German  troops. 
Aside  from  the  absurdity  of  such  a  performance,  a 
result  may  be  produced  contrary  to  that  which  is 
expected.    It  is  for  this  reason  that  military  authority 


INTERNATIONAL    LAW  151 

(in  most  cases)  wisely  decides  that  a  private  house  is 
to  be  considered  as  a  hospital  only  if  it  shelters  a 
proper  number  of  sick  (six),  which  also  facilitates 
control  and  surveillance. 

Question  of  the  National  Flag 
The  question  of  the  flag  presented  itself  at  the 
conference  of  1906  under  conditions  which  were  par- 
ticularly interesting.  According  to  the  convention 
of  1864  the  Red  Cross  flag  was  under  all  circumstances 
to  be  accompanied  by  the  national  flag.  Since  then, 
two  hypotheses  have  required  consideration.  In  the 
first  place  what  flag  should  a  neutral  field  hospital 
raise  when  going  to  place  itself  at  the  service  of  a 
belligerent?  Is  it  the  flag  of  the  neutral  country  or 
that  of  the  belligerent?  This  point  was  in  con- 
troversy. It  is  logical  that  it  should  be  the  flag  of 
the  belligerent  who  is  responsible  for  the  hospital  in 
the  eyes  of  the  adversary  and  who  protects  it.  Ar- 
ticle 22  of  the  convention  of  1906  determines  the 
question  in  that  sense.  But  there  was  to  be  regulated 
a  question  infinitely  more  delicate.  What  flag  should 
be  raised  by  a  hospital  which  falls  into  the  power  of 
the  enemy  and  which  remains  there  for  a  certain 
length  of  time?  Shall  it  retain  its  proper  flag,  or 
shall  it  raise  the  flag  of  the  enemy  in  whose  power  it 
finds  itself?  A  lively  discussion  arose  on  this  point. 
The  opinion  then  upheld  by  Professor  Renault  was 
that  the  hospital  should  retain  its  own  flag,  since  it 
is  only  provisionally  in  the  power  of  the  enemy;  that 
it  is  necessary  that  all  confusion  should  be  avoided; 
and  it  must  also  be  said  that  for  the  sentimental 
reasons  it  is  painful  to  be  sheltered  by  the  enemy's 
flag.  The  other  side  endeavored  to  prove  that  the  field 
hospital  became,  for  the  time,  part  of  the  enemy's 
forces,  the  latter  in  addition,  being  bound  to  pay  its 
personnel;  and  it  was  added  that,  under  the  cover  of 


152  EIGHTH    LECTURE 

the  enemy's  flag,  the  hospital  might  perhaps  be 
better  protected  than  under  its  own  flag.  This 
second  opinion  had  gathered  but  a  small  number 
of  adherents,  when  the  German  delegate  (General 
v.  Manteuffel)  thought  of  reaching  an  agreement 
on  another  ground,  by  purely  and  simply  sup- 
pressing the  flag  of  nationality.  This  solution  was 
fortunate,  since  it  implied  the  triumph  of  neither 
of  the  two  contending  opinions.  Therefore,  when  field 
hospitals  have  fallen  provisionally  into  the  enemy's 
power,  they  raise  no  flag,  other  than  that  of  the  Red 
Cross  (Art.  21 — 2d  paragraph.) 

Chapter  VII.— Of  the  Application  and  Exe- 
cution op  the  Convention -and  Chapter  VIII.  - 
Of  the  Repression  of  Abuses  and  Infractions.— 
It  was  thought  well  to  take  measures  to  endeavor  to 
prevent  the  frequent  abuse,  both  in  time  of  war  and 
of  peace,  of  the  insignia  and  name  of  the  Red  Cross, 
particularly,  as  a  trade  mark  and  for  commercial 
purposes  generally,  (signs  of  apothecaries,  of  dealers 
in  various  products,  perfumeries,  etc.)  Some 
countries  have  already  caused  repressive  laws  to  be 
enacted,  others  have  undertaken  to  follow  the  same 
line  which  clearly  requires  practically  unanimous 
consent.  A  project  of  law  is  being  prepared  in 
France,  and  England  has  also  recently  decided  to 
legislate  in  this  matter.  (See  for  action  of  U.  S., 
National  Red  Cross  legislation.) 

Along  the  same  lines  Art.  28  indicates  the 
measures  to  be  taken  with  a  view  to  war,  so  that 
each  belligerent  may  be  prepared  to  severely  punish 
individual  acts  of  pillage  and  of  bad  treatment  of 
the  sick  and  wounded,  as  well  as  the  usurpation  of 
military  insignia,  and  the  wrongful  use  of  the  flag 
and  brassard  of  the  Red  Cross. 

Article  26  says  that:  "The  signatory  govern- 
ments shall  take  the  necessary  steps  to  acquaint  their 


INTERNATIONAL    LAW  153 

troops,  and  particularly  the  protected  personnel, 
with  the  provisions  of  this  convention  and  to  make 
them  known  to  the  people  at  large.' ' 

This  requirement  is  all  the  more  rational  since 
the  role  of  the  personnel  which  is  protected  (doctors 
and  hospital  corps  men)  is  a  particularly  delicate  one, 
especially  when  they  fall  into  the  enemy's  power,  and 
when  they  come  into  the  possession  of  secrets  of 
which  they  should  not  make  use.  It  is  necessary, 
therefore,  to  give  them  a  strong  moral  training, 
capable  of  confining  them  to  their  exclusively  medical 
duties  under  pain  of  perfidy  on  their  part. 

Finally,  it  is  indispensable  to  impress  upon 
soldiers  that  they  are  not  to  fire  on  hospitals  or  on 
doctors,  but  they  must,  on  the  contrary,  respect  and 
protect  them. 

Non-Hostile  Relations  of  Belligerents — 
Flags  of  Truce. 

Notwithstanding  hostilities  which  are  evidenced 
by  an  exchange  of  projectiles,  belligerents  may  have 
personal  relations  taking  a  peaceful  form.  The  regu- 
lation of  certain  questions,  such  as  the  exchange  of 
prisoners,  the  conditions  of  a  capitulation,  the  signing 
of  an  armistice,  etc.,  clearly  requires  preliminary 
communication,  in  accordance  with  the  provisions 
more  or  less  strictly  defined,  contained  in  the  mili- 
tary regulations  of  each  country. 

The  method  of  these  communications  is  by  parle- 
mentaires,  *  who    have    the    rights     and     duties 

*  A  "parlementaire"  as  described  by  Art.  32  of  The  Hague 
Rules  is  an  individual  who  is  authorized  by  one  of  the  belliger- 
ents to  confer  with  the  other  and  who  presents  himself  to  the 
enemy  with  a  white  flag.  In  the  English  language  no 
equivalent  word  for  "parlementaire"  exists  and  I  have  there- 
fore adopted  the  French  term.  I  would  suggest  that  we 
should  adopt  the  word  for  use  in  our  military  vocabulary,  as  I 
understand  the  British  army  has  done,  since  the  term  "parle  - 
mentaire"  describes  the  agent  in  question  without  the  neces- 
sity of  a  descriptive  phrase.  The  "bearer  of  a  flag  of  truce" 
is  usually  an  enlisted  man  who  accompanies  the  officer 
charged  with  the  negotiations. 


154  EIGHTH    LECTURE 

indicated  in  Arts.  32,  33  and  34  of  The  Hague  rules 
of  1907  with  regard  to  the  laws  and  customs  of  war 
on  land.  Parlementaires  may  be  either  officers  or 
civilians.  It  was  thus  that  in  1870  the  city  of  Dijon, 
being  placed  under  the  obligation  to  surrender, 
charged  members  of  the  municipal  government  with 
the  mission  of  negotiating,  in  the  middle  of  night, 
with  German  headquarters.  The  role  of  parlemen- 
taires may  vary  according  to  the  case;  some  are 
simply  messengers  transmitting  correspondence  from 
one  side  to  the  other;  whereas  others  have  the  im- 
portant function  of  negotiating  military  conventions, 
particularly  a  suspension  of  arms,  a  capitulation,  etc. 
(In  this  last  case  a  general  officer  is  designated  or  a 
field  officer  of  high  rank). 

Whatever  be  the  case,  parlementaires  must  cause 
themselves  to  be  recognized  by  presenting  themselves 
with  a  white  flag,  and  being  accompanied  by  a  trum- 
peter, bugler,  or  drummer,  by  a  flag  bearer,  and, 
when  necessary,  by  an  interpreter.  All  this  person- 
nel has  the  right  to  inviolability. 

That  a  parlementaire  must  be  accompanied  by 
a  trumpeter  or  drummer  seems  to  be  almost  a 
requirement  of  international  law,  and  therefore 
except  where  it  is  impossible,  this  form  should 
be  complied  with.  The  Hague  rules  would 
appear  to  contemplate  that  a  party  advancing 
under  a  flag  of  truce  should  not  consist  of  over  four 
persons,  viz.:  the  parlementaire,  the  flag  bearer,  a 
trumpeter  and  an  interpreter.  The  general  under- 
standing however  is  that  the  size  of  the  party  may 
reasonably  be  in  excess  of  this  number.  Thus  the 
German  regulations  provide  for  horse  holders.  When 
an  officer  of  high  rank  is  sent  forward  it  would 
seem  proper  that  he  should  be  attended  by  an  orderly 
and  perhaps  even  by  a  staff  officer.  However  this 
may  be,  it  is  essential,  if  trouble  is  to  be  avoided, 


INTERNATIONAL    LAW  155 

that  the  universally  recognized  forms  should  be 
observed,  and  if  the  party  be  larger  than  is  indicated 
in  the  Hague  rules,  care  should  be  taken  to  have  the 
parlementaire,  the  flag  bearer  and  the  trumpeter 
well  in  the  lead  in  order  that  the  enemy  may  readily 
understand  the  nature  of  the  advancing  party. 
There  have  always  been  too  many  misunderstand- 
ings and  controversies  in  regard  to  flags  of  truce  and 
this  condition  can  only  be  minimized  by  a  rigid 
observance  of  all  the  formalities  and  a  close  adherence 
to  the  punctilios. 

But  it  must  not  be  understood,  if  a  parle- 
mentaire plays  a  role  analogous  to  that  of  a 
diplomatic  agent,  that  he  receives  the  benefit  of  the 
absolute  immunity  universally  recognized  as  due  to 
the  latter.  The  person  of  a  diplomatic  agent  is  in- 
violable even  when  he  has  committed  a  crime,  the 
the  only  precaution  then  taken  in  regard  to  him 
being  to  reconduct  him  to  the  frontier;  this  condition 
does  not  apply  to  a  parlementaire.  The  chief  to 
whom  a  parlementaire  is  sent  is  not  obliged  to  receive 
him  under  all  circumstances.  In  principle  a  parle- 
mentaire who  is  not  recognized  at  the  advance  posts 
of  the  enemy,  is  reconducted  to  the  advance  posts  of 
his  own  army;  but  if  notice  has  been  given  in  advance, 
that  no  flag  of  truce  will  be  received  he  may  be  fired 
upon  if  notwithstanding  this  notice,  he  presents 
himself.  It  is,  in  principle,  allowed  to  each  army  to 
take  measures  to  prevent  parlementaires  from 
profiting  by  their  mission,  by  enlightening  themselves 
or  by  spreading  suggestive  news,  etc.  Often  an 
extraordinary  carelessness  is  shown  in  regard  to  this. 
A  typical  example  is  the  following:  a  German  lieu- 
tenant colonel  who  had  been  sent  to  Laon,  being 
allowed  to  wander  about,  went  to  the  Hotel  de  Ville, 
where  the  municipal  council  was  gathered,  and 
addressed  the  meeting  in  order  to  lead  the  city  govern- 


156  EIGHTH    LECTURE 

ment  to  intervene  with  the  military  governor  with  a 
view  to  the  surrender  of  the  place.  Clearly  this  case 
seems  to  go  beyond  all  belief  and  we  may  suppose  that 
it  is  unique  of  its  kind.  But  without  committing  a 
fault  a  parlementaire  may  discover  a  secret  of  the 
enemy  (a  projected  movement  of  troops,  etc.);  in  such 
case  he  may  be  temporarily  held.  If,  beyond  this,  he 
takes  advantage  of  his  privileged  position  to  provoke 
or  commit  an  act  of  treachery  the  parlementaire  may 
be  punished.  In  the  consideration  of  such  a  case, 
the  greatest  care  must  be  used;  positive  and  irrefut- 
able proof  is  needed.  Fortunately  the  case  is  a 
very  rare  one.  To  prevent  it  by  measures  of  pre- 
caution is  much  to  be  preferred.  When  it  occurs  the 
opposite  party  must  be  notified  without  delay  of 
the  reason  for  the  retention  of  the  culpable  parle- 
mentaire, who  cannot  however,  be  convicted  without 
a  trial. 

The  accomplishment  of  their  mission  by  par- 
lementaires  leads  us  to  speak  of  military  conventions. 

Conventions  Which  May  Arise  Between 
Belligerents 

We  are  here  concerned  with  the  war  conventions 
which  arise  during  the  course  of  operations  between 
belligerents.  Not  all  of  these  are  exclusively  mili- 
tary.   We  find  an  example  of  this  in  an  armistice. 

All  conventions  between  belligerents  are  cer- 
tainly, in  a  certain  sense,  international  conventions, 
since  they  are  concluded  by  representatives  of  differ- 
ent nations;  but  the  ordinary  rules  of  diplomatic  con- 
ventions are  not  applied  to  conventions  which  are  ex- 
clusively military.  The  former  may  only  be  con- 
cluded by  agents  who  have  received  from  their  gov- 
ernments a  special  mandate  which  is  called  full  pow- 
ers; besides,  due  to  the  rules  of  ordinary  law,  an  in- 
ternational   convention,    properly    speaking,   is  not 


INTERNATIONAL    LAW  157 

concluded  from  the  fact  of  the  signatures  of  the 
plenipotentiaries,  it  does  not  yet  bind  the  govern- 
ments concerned;  it  must  be  ratified  by  the  head  of 
the  state  and  even,  sometimes,  in  certain  countries, 
it  must  receive  the  approval  of  parliament. 

It  is  practically  thus  with  the  United  States.  In- 
ternational conventions  are  neither  more  nor  less 
than  treaties.  Wilson  defines  a  treaty  to  be  "an 
agreement  between  two  or  more  states  in  conformity 
to  law"  and  further  that  "A  convention  usually  re- 
lates to  some  specific  subject  rather  than  to  matters 
of  general  character,  as  in  the  case  of  a  treaty." 
While  in  describing  an  international  agreement  the 
technical  difference  mentioned  may  lead  to  the  agree- 
ment being  given  a  specific  name,  the  fact  remains 
that  the  agreement  to  be  binding  must  ultimately  be 
a  treaty  such  as  our  constitution  provides  for.  It  is 
customary  where  a  number  of  nations  meet,  as  they 
did  at  Geneva  and  at  The  Hague,  to  consider  and 
agree  upon,  if  they  can,  a  system  of  rules  to  be  ap- 
plied to  certain  international  conditions,  to  call  the 
result  reached  a  convention.  The  legal  ratification 
of  this  convention  by  two  or  more  of  the  nations 
gives  to  it  the  full  force  of  a  treaty,  as  between  the 
ratifying  powers.  In  the  United  States  the  treaty 
making  power  is  in  the  President  by  and  with  the 
consent  of  the  Senate  (it  being  required  that  two- 
thirds  of  the  Senators  present  concur.)  The  procedure 
is  as  follows:  The  President  having  negotiated  a 
treaty,  submits  it  to  the  Senate.  If  two-thirds  of 
the  Senators  present  fail  to  vote  in  favor  of  the 
treaty,  it  fails;  if  on  the  other  hand,  the  Senate  con- 
curs and  so  informs  the  President,  the  latter  ratifies 
the  treaty,  that  is,  formally  concludes  it  with  the 
other  nation.  Then  or  at  sometime  afterwards,  the 
President  proclaims  it.  The  Supreme  Court  has  held 
that  after  ratification,  a  treaty  "is  considered  as  con- 


168  EIGHTH    LECTURE 

eluded  and  binding  from  the  date  of  signature,"  as 
between  the  governments,  while  as  regards  persons, 
it  is  binding  only  from  the  date  of  ratification  and 
proclamation.  There  are  many  cases,  with  us,  where 
the  ratification  is  not  immediately  followed  by  a  proc- 
lamation, in  such  cases,  therefore,  persons  are  only 
bound  from  the  date  of  the  latter.  This  must  clearly 
be  so  since  until  the  proclamation  of  the  President 
has  made  known  the  treaty  to  the  public,  the  latter 
can  have  no  official  knowledge  of  its  contents  or  of 
the  fact  of  its  ratification.  In  conventions  such  as 
those  of  Geneva  or  of  The  Hague,  in  which  many  na- 
tions join,  the  method  of  ratification  is  to  deposit 
with  some  agent,  as  with  the  government  of  the 
Netherlands,  the  instrument  of  ratification  and  thus 
by  one  act  enter  into  treaties  with  all  the  other  gov- 
ernments concerned. 

These  requirements  would  be  incompatible  with 
the  nature  of  military  conventions;  the  latter  are  ne- 
gotiated and  concluded  under  the  empire  of  necessity 
by  the  military  chiefs,  without  special  powers,  and 
without  the  requirement  that  there  shall  be  a  later 
ratification  by  the  belligerent  states.  Such  conven- 
tions are  valid  on  condition  of  being  distinctly  mili- 
tary and  of  containing  no  political  clauses.  The 
military  chiefs  must  give  appreciation  to  the  particu- 
lar circumstances  in  which  they  find  themselves; 
they  must  confine  themselves  to  the  instructions 
which  they  have  received  and  to  the  regulations  of 
their  own  countries.  The  failure  to  observe  these 
instructions  or  regulations  may  lead  to  grave  re- 
sponsibilities and  to  disciplinary  penalties  for  the 
military  chiefs,  but  still  in  no  wise  touch  the  validity 
of  the  convention. 

Military  conventions  are  of  a  very  varied  nature. 
The  Hague  considered  the  two  most  important:  capitu- 
lation and  armistice. 


INTERNATIONAL    LAW  159 

Purely  voluntary  conventions  were  not  mentioned 
(such  would  be  a  convention  relating  to  the  exchange 
of  prisoners);  capitulation  and  armistice  depend,  to 
be  sure,  upon  the  parties,  but  more  often  they  are 
dictated  by  the  circumstances  of  the  case. 

Certain  transactions  having  in  view  the  furnish- 
ing of  guaranties,  such  as  safe-conducts  and  safe- 
guards, have  been  considered  to  be  of  the  nature  of 
conventions,  but  there  is  no  analogy;  these  acts  are 
unilateral,  and  The  Hague  does  not  mention  them. 

Safe-Conducts.— Safe-conducts  are  not  re- 
stricted to  war  times;  they  may  be  granted  in  time 
of  peace.  Let  us  suppose  that  a  man  who  has  failed 
in  business  has  taken  refuge  abroad.  He  is  needed 
in  order  to  obtain  certain  information  in  regard  to 
his  failure.  A  safe-conduct  may  be  granted  to  him 
guaranteeing  that  he  will  not  be  arrested  while  he  is 
testifying. 

In  time  of  war  a  safe-conduct  is  a  simple  pass- 
port—a permit  to  cross  the  enemy's  lines  without 
being  molested;  it  may  be  added,  perhaps,  that  the 
safe-conduct  is  a  little  more  than  a  passport,  since  it 
covers  not  only  the  person  of  the  bearer,  but  also  his 
goods.  Mr.  Thiers  received,  in  October,  1870,  a 
safe-conduct  which  permitted  him  to  go  to  Versailles 
for  a  conference  with  the  German  authorities. 
When  a  field  hospital  which  has  been  left  in  the 
territory  occupied  by  the  enemy  rejoins  its  post, 
after  having  been  relieved,  it  receives  a  safe-conduct 
with  instructions  as  to  the  itinerary  it  must  follow. 

Safeguards.  A  safeguard  has  for  its  purpose 
to  place  under  the  protection  of  a  belligerent,  estab- 
lishments or  persons  which  are  within  the  zone  of 
operations;  such  are  establishments  sacred  to  worship, 
to  the  arts,  to  science,  to  instruction,  to  charity,  or 
the  dwelling  place  of  a  diplomatic  agent  or  of  a  per- 
sonage to  whom  it  is  desired  to  render  particular 


160  EIGHTH    LECTURE 

honor.  The  premises  of  any  citizen  may  also  be  so 
protected. 

There  is  a  distinction  between  the  dead  safeguard 
—a  simple  order  or  notice  not  to  touch  an  establish- 
ment— and  the  live  safeguard,  where  the  occupying 
force  sanctions  and  accentuates  this  special  protection 
by  posting  a  sentinel  or  a  picket.  In  the  case  of  a 
live  safeguard,  an  interesting  question  presents 
itself:  The  enemy  has  placed  a  sentinel  before  an 
establishment  in  the  country  of  the  adverse  party, 
the  latter  makes  a  return  offensive  movement  and 
the  sentry  falls  into  his  power.  Is  he  a  prisoner  of 
war?  There  is  nothing  laid  down  regarding  the  live 
safeguard,  but  there  is  a  custom;  the  custom  is  that 
such  guards  are  not  made  prisoners.  It  is  in  the 
interest  of  the  establishment — in  the  interest  of  the 
enemy— that  the  sentinel  was  posted;  it  would  be  too 
much  that  the  sentry  should  suffer  under  such  con- 
ditions. There  is  an  analogy  of  fact,  but  not  an 
identity,  between  this  and  the  picket  posted  at  a 
sanitary  establishment  for  the  purpose  of  maintain- 
ing order  therein;  the  armed  picket  does  not  cause 
the  hospital  to  lose  its  charitable  character,  and  it 
should  be  remembered  that  the  question  raised  at 
Geneva  in  1906,  "Should  the  picket  and  the  sentries 
protecting  the  sanitary  establishment  be  considered 
as  prisoners  of  war?"  was  decided  in  the  negative. 

Capitulations.— The  most  important  conven- 
tion, because  it  arises  in  every  war,  is  a  capitulation. 
In  international  law  the  word  capitulation  has 
another  meaning:  Thus  Switzerland,  before  1848, 
entered  into  "capitulations' '  with  certain  other 
states,  principally  France,  to  furnish  them  with 
regiments;  in  the  same  way  one  distinguishes  "coun- 
tries of  capitulations"  as  those  where  foreigners 
occupy  a  peculiar  status  due  to  the  powers  granted 
to  consuls.    The  capitulation  which   we   are   now 


INTERNATIONAL    LAW  1«1 

discussing  is  a  war  convention  which  causes  to  be 
known  the  conditions  under  which  the  struggle 
ceases.  In  a  broader  sense  the  expression  '  'capitu- 
lation" indicates  the  fact  of  surrender;  it  may  be 
pure  and  simple,  as  where  the  conqueror  requires 
that  his  adversary  surrender  at  discretion,  confiding 
in  the  generosity  of  the  conqueror;  or,  in  a  contrary 
sense,  where  the  conquered  may  not  wish  to  make 
an  appeal  to  the  generosity  of  the  conqueror,  and 
says  to  him:  "Do  with  me  what  you  will."  The 
latter  case  was  presented  at  Phalzburg  in  1870. 
There  is  in  such  a  surrender  no  convention  properly 
speaking;  it  is  a  condition  of  fact. 

There  were  in  1870  a  certain  number  of  capitu- 
lations; after  the  war  a  court  of  inquiry  was  insti- 
tuted by  the  French  government  before  which 
appeared  all  the  military  chiefs  who  had  signed 
capitulations.  The  court  blamed  in  certain  cases 
and  praised  in  others.  As  a  result  of  its  conclusions, 
the  officer  responsible  for  the  capitulation  of  Metz 
was  brought  before  a  court-martial. 

The  Germans  treated  with  generosity  Major 
Taillant,  the  governor  of  Phalzburg,  who,  after  an 
heroic  resistance  of  four  months,  spiked  his  guns, 
destroyed  his  materiel,  opened  the  gates  of  the  city, 
and  surrendered  at  discretion  on  December  12,  1870. 
To  honor  this  fine  conduct,  the  enemy  allowed  the 
officers  to  retain  their  arms,  the  men  their  knapsacks, 
and  granted  to  all  the  choice  of  their  place  of  deten- 
tion. The  court  of  inquiry  of  1872  had  nothing  but 
words  of  praise  for  Major  Taillant. 

It  is  particularly  in  matters  of  capitulation  that 
military  chiefs  have  great  responsibility;  they  must 
conform  to  the  regulations  of  their  own  country 
which  indicate  the  method  under  which  they  are 
allowed  to  surrender.  In  most  European  countries 
specific  regulations  exist  as  to  how  and  when  a  mili- 


162  EIGHTH    LECTURE 

tary  commander  may  capitulate.  Our  regulations  are 
silent  on  the  point  but  the  Articles  of  War  touch  upon  it 
somewhat.  Thus  the  42d  Article  provides  that  any 
officer  or  soldier  who  shamefully  abandons  any  fort, 
post  or  guard,  which  he  is  commanded  to  defend,  or 
speaks  words  inducing  others  to  do  the  like,  shall 
suffer  death  or  such  other  punishment  as  a  court- 
martial  may  direct.  The  43d  Article  provides  that  if 
any  commander  of  any  garrison,  fortress  or  post  is 
compelled  by  the  officers  and  soldiers  under  his  com- 
mand, to  give  it  up  to  the  enemy  or  to  abandon  it, 
the  officers  or  soldiers  so  offending  shall  suffer  death 
or  such  other  punishment  as  a  court-martial  may 
direct. 

As  an  illustration  of  how  minutely  and  carefully 
these  matters  are  regulated  in  the  great  armies  of 
Europe  we  will  take  as  an  example  the  French  regu- 
lations. These  regulations  consider  two  classes  of 
capitulation;  fche  capitulation  of  a  stronghold,  and  the 
capitulation  of  troops  in  the  field. 

Capitulation  of  a  Stronghold.— One  can  un- 
derstand that  a  stronghold  may  be  obliged  to  sur- 
render when  it  has  no  more  food,  nor  any  means  of 
defense.  The  French  regulations  of  October  14, 1891, 
express  this  idea,  in  Article  196: 

"When  the  governor  judges  that  the  last  term  of 
resistance  has  been  reached,  he  consults  the  council 
of  defense  in  regard  to  means  of  prolonging  the 
siege.  The  governor  having  listened  to  the  council, 
and  the  meeting  having  adjourned,  takes  of  his  own 
motion  the  resolution  which  his  feelings  of  duty  and 
of  responsibility  suggest  to  him.  In  all  cases  he  does 
this  alone;  upon  his  own  responsibility  in  regard  to 
the  time  and  the  terms  of  the  capitulation.  In  no 
case  must  he  surrender  the  place  before  having  de- 
stroyed the  colors/ ' 


INTERNATIONAL    LAW  163 

The  question  has  been  raised  as  to  whether  the 
commander  of  a  military  stronghold,  not  having  ex- 
hausted all  his  means  of  defense,  might  not  justify  a 
capitulation  on  the  grond  of  preventing  a  bombard- 
ment or  of  procuring  advantages  for  his  country. 
The  commandant  of  a  post  has  no  right  to  place  him- 
self on  the  political  terrain  and  to  anticipate  advan- 
tages which  may  prove  ultimately  only  illusory;  he 
cannot  tell  whether,  by  holding  on  for  a  few  days, 
and  thus  holding  the  enemy,  fortunate  consequences 
may  not  follow.  Article  209  of  the  French  Code  of 
Military  Justice  answers  this  question: 

"Is  punishable  by  death,  with  military  degrada- 
tion, any  governor  or  commander  who,  tried,  on  the 
recommendation  of  a  court  of  inquiry,  is  found  guilty 
of  having  capitulated  with  the  enemy,  without  hav- 
ing exhausted  every  means  of  defense  at  his  disposal, 
and  without  having  accomplished  everything  which 
was  prescribed  to  him  by  duty  and  honor." 


NINTH  LECTURE 


CAPITULATION  in  the  Open  Field.  -  If  the 
French  military  regulations  admit  of  the  ca- 
pitulation of  a  stronghold,  it  is  not  the  same 
in  regard  to  the  capitulation  of  troops  in  the  field. 
Their  Article  210  says: 

"Every  general  or  commander  of  armed  troops 
who  capitulates  in  the  open  field  is  punished  by  death 
with  military  degradation  if  the  capitulation  has  re- 
sulted in  causing  his  troops  to  lay  down  their  arms; 
and  by  cashiering  in  every  other  case." 

Capitulation  in  the  open  field  is  never  justified. 
This  was  one  of  the  ideas  of  Napoleon  on  the  capitu- 
lation of  Belem,  which  was  the  beginning  of  his  de- 
feats. It  is,  by  the  way,  an  extremely  interesting 
question  of  military  history  to  know  whether  Gen- 
eral Dupont  was  as  culpable  as  Napoleon  claimed. 
The  accusations  against  him  have  been  breached, 
during  the  past  few  years,  by  a  military  writer, 
Colonel  Titeux,  who  has  devoted  himself  to  the  ques- 
tion. 

The  convention  of  The  Hague  says  but  little  in 
regard  to  capitulations.  It  only  sets  forth  certain 
summary  rules  and  differentiates  from  them  those 
clauses  contrary  to  honor:  "Capitulations  agreed 
upon  between  the  contracting  parties  must  take  into 
account  the  rules  of  military  honor.  Once  settled, 
they  must  be  scrupulously  observed  by  both  parties. " 

Object   of   Capitulation.  —  The   purpose    of 
capitulations  should  relate  to  the  following  clauses: 
1.    The  fate  of  the  garrison. 

166 


166  NINTH    LECTURE 

2.  The  turning  over  of  the  place  and  of  the 
materiel  of  war. 

3.  The  fate  of  the  inhabitants. 

Any  other  clauses  which  might  have  a  political 
character,  which  would  not  concern  the  commandant 
of  the  place,  should  be  considered  as  void,  since  they 
would  not  be  binding  on  the  government  unless 
the  latter  should  take  occasion  to  ratify  them.  Thus 
Genoa,  besieged  in  1814  by  an  English  squadron,  sur- 
rendered under  the  condition  of  becoming  once  more 
a  free  and  independent  republic;  the  governments  of 
the  allied  powers  did  not  ratify  this  clause  and  Genoa 
was  attached  to  the  government  of  Sardinia.  In 
1870  the  governor  of  Verdun  surrendered  the  place, 
stipulating  that  all  the  materiel  should  be  returned 
to  France  after  the  war;  the  court  of  inquiry  of  1872 
blamed  him  for  having  agreed  to  such  a  clause 
which  might  have  led  him  to  hasten  the  capitulation 
for  an  advantage  which  the  enemy  had  the  right  to 
decline  to  recognize.  In  the  capitulation  of  El-Arish, 
concluded  between  Sidney  Smith  and  Kleber,  the 
latter  was  wrong  in  carrying  into  execution  certain 
clauses,  and  in  commencing  the  evacuation  of  certain 
places  in  Egypt  before  he  was  assured  of  the  ratifica- 
of  the  English  government.  This  ratification  was 
not  given;  some  time  afterward  took  place  the  battle 
of  Heliopolis,  and  Kleber  was  assassinated. 

For  military  capitulations,  it  is  seen  that  some- 
times there  must  be  a  ratification;  this  ratification 
should  not  be  understood  in  a  political  sense;  generally 
the  capitulation  is  preceded  by  negotiations  conducted 
through  staff  officers  to  whom  the  commanding  gen- 
erals delegate  their  powers,  reserving  to  themselves 
the  right  of  ratification.  From  the  moment  a  con- 
vention is  signed  it  binds  both  parties;  so  long  as  it 
is  not  signed  he  who  capitulates  has  the  right  to  do 
what  he  pleases,  and  may  destroy  all  matenel  which 


INTERNATIONAL    LAW  167 

he  does  not  wish  to  see  fall  into  the  hands  of  the 
enemy;  but  after  the  signatures  have  been  affixed, 
things  must  remain  as  they  are.  It  is  a  ques- 
tion of  good  faith.  After  the  capitulation  of  Metz 
many  colors  were  burned;  the  Germans  were 
justified  in  blaming  the  French  for  this. 

In  a  capitulation  the  first  thing  to  determine  is 
the  fate  of  the  garrison;  in  many  of  the  capitulations 
of  1870  liberty  on  parole  was  granted  to  officers. 
Sometimes  it  was  in  the  form  of  a  limited  liberty; 
they  were  to  go  freely  to  a  place  designated;  in 
certain  cases  it  took  the  form  of  complete  liberty; 
they  gave  their  word  of  honor  not  again  to  bear  arms 
against  Germany.  Article  1  of  the  capitulation  of 
Peronne  stipulated:  "That  they  were  by  no  means 
to  act  against  the  interests  of  Germany"— a  vague 
formula,  which  placed  the  officers  in  an  i  ntolerable 
position  *  and  which  the  commandant  of  the  place 
should  not  have  allowed  to  be  inserted  in  the  capitu- 
lation; it  was,  besides,  forbidden  by  the  French 
military  regulations,  which  prohibit  officers  from 
separating  their  fate  from  that  of  the  troops.  All 
the  commandants  of  posts  who,  in  1870,  asked  for 
liberty  on  parole  for  their  officers  were  censured  by 
the  court  of  inquiry  of  1872. 

A  capitulation  should  set  forth  the  measures 
which  shall  be  taken  for  the  surrender  of  arms  and 
materiel— the  place,  the  time  of  turning  over,  and  a 
whole  series  of  details  as  to  the  dispositions  to  be 
made. 

In  regard  to  the  fate  of  the  town,  the  question 
presents  less  importance  than  in  former  days.  It  is 
now  settled  that  pillage  is  forbidden  and  that  the 
inhabitants  must    be    respected.     Clauses    may    be 

*  The  same  vague,  and  therefore  objectionable  terms  of 
paroles,  were  imposed  at  Sedan  and  at  Metz.     (See  appendix.) 


168  NINTH    LECTURE 

introduced  having  for  their  purpose  to  exempt  the 
inhabitants  from  certain  of  the  charges  of  war. 
The  inhabitants  of  Peronne  benefitted  from  such 
conditions  by  reason  of  the  energetic  resistance  of 
that  city.  There  are,  sometimes,  clauses  concerning 
the  sick  and  wounded,  but  in  general,  it  is  sufficient  to 
call  attention,  in  regard  to  them,  to  the  Geneva 
convention. 

Violations  of  Capitulations. -A  capitulation 
should  be  respected  by  both  parties  and  carried  out 
in  good  faith.  There  may  be,  however,  a  failure  to 
execute  clauses  either  by  the  besieged  or  by  the  be- 
sieger; this  case  is  always  blamable.  In  regard  to 
violations  of  capitulations,  a  distinction  must  be 
drawn  between  individual  and  collective  acts.  We 
find  a  deplorable  example  of  an  individual  violation 
at  the  time  of  the  surrender  of  Laon  in  September, 
1870.  Hardly  had  the  last  French  troops  left  the 
place  when  a  terrible  commotion  was  felt;  the  powder 
magazine  had  exploded,  causing  the  death  of  more 
than  300  Frenchmen;  the  Germans  had  two  officers 
and  54  men  killed  and  126  officers  and  men  wounded. 
The  artillery  store  keeper,  Henriot,  through  a  mis- 
taken sentiment  of  patriotism,  blew  himself  up, 
carrying  with  him  more  Frenchmen  than  enemies. 
The  governor-general  of  the  place  was  suspected  of 
complicity— he  should  be  relieved  of  this  suspicion; 
he  was,  by  the  way,  seriously  wounded  in  the  explosion 
and  died  as  a  result  of  his  wounds.  In  1757  the 
English  did  not  carry  out  the  capitulation  of  Closter- 
seven,  under  which  a  part  of  their  army  was  to 
remain  in  inaction.  The  conqueror  was  very  impru- 
dent to  leave  at  liberty  the  vanquished  army  and  to 
submit  its  good  faith  to  such  a  strain;  one  should 
Cmwfon  thfi  good  faith  of  one's  adversary,  but  one 


INTERNATIONAL    LAW  169 

should  act  as  though  he  were  expected  to  violate  the 
convention. 

Suspension  of  Arms. — A  suspension  of  arms  is 
an  essentially  military  convention;  it  is  not  mentioned 
in  the  proceedings  of  The  Hague,  probably  because 
it  is  very  limited  in  duration  and  would  not  warrant 
discussion  in  law.  Between  the  suspension  of  arms 
and  the  armistice,  the  terminology  is  not  yet  fixed; 
in  English  we  have  but  one  word  to  express  the 
double  idea,  whereas  Germany  and  France  have  two. 
(Waffenruhe,  Waffenstillstand.)  A  suspension  of 
arms  is  most  often  verbal,  with  an  effect  limited  to 
a  few  hours,  or  to  a  few  days,  to  gather  the  wounded, 
inter  the  dead,  or  to  allow  a  meeting  with  a  capitu- 
lation in  view. 

Armistice.— The  situation  is  different  when  it 
has  regard  to  an  armistice.  An  armistice  is  a  semi- 
political  convention  because  it  leads,  almost  always, 
to  the  supposition  that  peace  will  be  concluded. 
Peace  may  be  concluded  without  an  armistice  (Peace 
of  Westphalia);  in  our  days  hostilities  are 
generally  suspended  during  the  conferences.  The 
military  chiefs  have  not  powers  sufficient  to  enable 
them  to  conclude  peace;  they  would  need  special 
powers.  The  armistice  lasts  for  a  certain  length  of 
time.  It  is  ordinarily  intended  to  facilitate  negotia- 
tions; the  treaty  of  peace  signed  at  Paris,  which 
brought  to  a  close  the  Spanish-American  war,  was 
preceded  by  the  armistice  of  Washington,  negotiated 
by  Jules  Cambon,  then  the  French  ambassador  to  the 
United  States.  However,  an  armistice  may  be 
signed  after  the  conclusion  of  peace  (Russo-Japanese 
war),  *  when  hostilities  terminate  before  the  treaty 
of  peace  can  receive  execution. 

Sometimes  an  armistice  becomes  a  truce;  it  is 
then  intended  not  to  prepare  for  peace  but  to  supple- 

*  See  appendix. 


170  NINTH    LECTURE 

ment  it.  In  our  days  the  case  is  rarely  presented, 
but  in  other  days,  when  a  war  was  prolonged  without 
success  for  one  side  or  the  other,  a  truce  was  ar- 
ranged. It  was  intended  to  be  indicated  thereby 
that  the  quarrel  was  not  satisfied,  that  no  one  re- 
nounced their  pretensions,  and  that  the  question 
which  led  to  the  war  might  lead  to  new  conflicts. 
Such  were  the  truces  between  the  Turks  and  the 
Christians.  There  could  not  be  peace,  the  Koran 
prescribing  a  perpetual  war  against  Christians. 
Nowadays  peace  is  concluded,  even  where  there  is  an 
idea  that  it  will  not  endure;  the  hope  of  revenge  may 
remain— a  hope  which  is  not  always  realized;  in  1871, 
when  France  and  Germany  signed  the  treaty  of 
Frankfort,  each  of  the  two  powers  certainly  had  the 
idea  that  peace  would  not  endure  for  more  than  forty 
years. 

We  have  recently  seen  a  treaty  of  peace  take 
upon  itself  the  character  of  a  truce.  From  1879  to 
1884  there  was,  on  the  Pacific  coast,  war  between 
Peru  and  Bolivia  on  one  side  and  Chile  on  the  other. 
Between  Chile  and  Bolivia  the  only  result  was  an  in- 
definite truce,  which  is  to  be  denounced  a  year  in 
advance.  Peru  and  Chile,  on  the  contrary,  entered 
into  a  treaty  of  peace,  which  presents  a  very  inter- 
esting peculiarity:  Two  provinces,  rich  in  nitre, 
were  ceded  by  Peru  to  Chile;  at  the  end  of  ten  years 
the  inhabitants  were  to  be  consulted  to  determine 
whether  they  desired  to  remain  Chilean;  if  so  Chile 
was  to  pay  an  indemnity  to  Peru.  The  plebiscite  has 
not  yet  taken  place,  it  having  been  impossible  to 
reach  an  understanding  as  to  the  mode  of  conducting 
it,  since  it  was  to  occur  a  certain  length  of  time 
after  the  cession,  and  not  before,  as  would  have  been 
rational,  and  as  had  been  the  case  with  Nice  and 
Savoy,  and  with  the  kingdom  of  Naples. 

The  armistice  not  being  an  exclusively  military 


INTERNATIONAL    LAW  171 

convention,  requires  direct  representatives  of  the  in- 
terested governments,  furnished  with  special  powers. 
It  is  thus  that  the  convention  of  armistice  of  January 
28,  1871,  which  at  the  same  time  arranged  for  the 
capitulation  of  Paris,  was  concluded  between  Count 
Bismark,  representing  the  German  emperor,  and 
Jules  Favre,  the  minister  of  foreign  affairs  of  France. 

It  is  essential  that  an  armistice,  once  concluded, 
should  be  made  known  immediately,  and  in  exact 
terms,  to  the  civil  authorities  and  to  all  military  com- 
manders. The  disaster  to  the  French  Army  of  the 
East  in  1871,  which  led  to  unjustifiable  accusations 
against  the  Germans,  was  due  to  the  careless  and  in- 
complete publication  by  Jules  Favre,  of  the  terms  of 
the  armistice  of  January  28,  1871. 

The  determination  of  this  armistice  did  not  indi- 
cate a  very  great  diplomatic  experience  in  the  French 
representative,  and  the  method  of  publication  was  of 
a  character  so  frivolous  that  it  might  be  deemed  cul- 
pable; thus,  the  armistice  was  only  to  be  effective  in 
the  Departments  after  January  31st  and  the  Army  of 
the  East  was  left  out  entirely.  No  mention  of  this 
was  made  in  the  French  telegram  to  that  Army  sent, 
in  order  to  secure  haste,  by  the  German  route.  Count 
Bismark,  who  countersigned  the  dispatch  in  which 
Favre  announced  the  armistice,  observed  the  error, 
but  he  was  within  his  rights  in  not  calling  attention 
to  it.  It  would  have  been  a  generous  act  on  his  part 
had  he  done  otherwise.  Count  Bismark  had  no  idea, 
however,  of  conducting  war  on  sentimental  principles. 

As  with  every  convention,  a  convention  of  armis- 
tice lays  down  the  law  for  the  parties.  And  in  order 
to  avoid  any  divergent  opinions  it  is  therefore  neces- 
sary that  all  its  details  should  be  prepared  with  care, 
particularly  in  so  far  as  regards  its  length,  its  scope, 
and  its  effects. 

1.     Length. — Very  great  precision  is  necessary. 


172  NINTH    LECTURE 

It  should  not  be  said  that:  "The  armistice  will  last 
from  the  tenth  of  January  to  the  fifteenth  of  Febru- 
ary," for  example.  This  would  be  too  vague.  Ac- 
cording to  the  interpretation,  these  days  might  be  in- 
cluded or  not  in  the  length  of  the  armistice.  There- 
fore, the  dates  and  the  hour  of  the  beginning  and  of 
the  ending,  should  be  mentioned. 

Sometimes  an  armistice  will  have  an  indefinite 
length,  —  undetermined  because  it  cannot  be  known 
how  long  the  peace  negotiations  will  last.  It  will 
then  be  stipulated  very  carefully  how  it  shall  ulti- 
mately be  denounced,  and  after  what  delay;  starting 
from  this  denunciation,  hostilities  will  recommence. 
An  armistice  may  in  any  case  be  prolonged  even  it 
was  concluded  for  a  fixed  time.  It  was  thus  that  in 
1871  the  armistice  between  France  and  Germany  was 
successively  extended  from  February  19th  at  noon,  to 
February  24th,  then  to  February  26th,  and  then  to 
March  12th.  The  extension  must  be  agreed  to  by 
the  same  parties  that  agreed  to  the  armistice. 

2.  Scope. —The  range  of  an  armistice  is  not 
always  the  same.  Sometimes  it  has  a  general  charac- 
ter; it  then  suspends  hostilities  on  land  and  at  sea. 
Sometimes  it  is  only  partial  and  is  only  applicable  to 
operations  at  sea,  or  only  to  those  which  take  place 
on  land;  sometimes,  even,  it  extends  to  only  a  portion 
of  the  territory.  In  1871  when  Jules  Favre  notified 
the  French  troops  of  the  armistice,  his  telegram  was 
sent  by  the  field  telegraph  of  the  Germans.  He  did 
not  make  known  that  the  armistice  did  not  apply  '  'to 
military  operations  in  the  Departments  of  the  Cote 
d'Or,  of  the  Doubs,  and  of  the  Jura,  or  to  the  siege 
of  Belfort."  Bismarck  confined  himself  to  counter- 
signing the  telegram.  He  has  been  attacked  for 
this.  According  to  us  this  was  unwarranted.  Bis- 
mark  was  not  required  to  correct  the  errors  or  the 
mistakes  of  the  French  government.     We  know  the 


INTERNATIONAL    LAW  178 

unfortunate  results  which  this  careless  conduct  of  the 
French  foreign  minister  had,  under  the  circumstances, 
for  General  Bourbaki's  army.  The  telegram  sent  by 
von  Moltke  to  General  von  Manteuffel,  who  had  the 
army  of  Bourbaki  as  his  objective,  is  characterized 
by  its  "imperatoria  brevitas,"  and  states,  in  a  few 
clear  and  precise  words,  all  that  was  agreed  upon. 

3.  Effects.  —  In  regard  to  this  point  one  must 
be  very  careful,  in  order  to  avoid  difficulties. 

Certain  results  are  necessary,  that  is,  that  with- 
out them  an  armistice  would  not  be  in  contemplation; 
cessation  of  hostilities,  no  more  effusion  of  blood,  no 
more  combats,  no  more  reconnaissance,  nor  attacks, 
nor  bombardments,  nor  works  of  approach.  A  line 
of  demarcation  will  be  traced,  or  better,  a  strip  of 
land  or  a  neutral  zone,  several  kilometers  wide  will 
be  established,  which  the  troops  are  not  to  penetrate. 
At  the  most  there  will  be  left  thereon  a  certain  police 
force  and  a  mixed  commission  charged  with  deter- 
mining on  the  field  any  difficulties  which  may  arise. 

Behind  these  lines  each  belligerent  may  do  as  he 
pleases;  exercise  his  troops,  raise  additional  troops, 
etc.,  and  exercise  over  the  territory  he  occupies  the 
rights  of  a  belligerent,  because  an  armistice  is  not 
peace.  It  was  by  virtue  of  this  principle  that  the  Ger- 
mans maintained  the  right  of  requisition  in  1871. 
But,  outside  of  what  has  been  said,  the  liberty  of 
action  of  the  belligerents  during  an  armistice  may 
lead  to  doubts;  the  question — in  other  days  a  classic, 
but  very  much  less  interesting  in  modern  warfare- 
is  that  of  knowing  if  the  belligerents  may  repair 
breaches  in  their  works  during  an  armistice  when 
there  are  no  clauses  in  regard  to  this  point  in  the 
convention,  in  so  far  as  concerns  a  besieged  city. 
Some  say  that  a  belligerent  may  not  do,  during  an 
armistice,  that  which  he  could  not  have  done  if  the 
struggle  had  continued.     This  rule  is  too  absolute, 


174  NINTH    LECTURE 

because  it  would  require  us  to  admit  that  troops  may 
not  rest  themselves;  others  claim  that  everything 
which  is  not  forbidden  is  permitted.  In  order  to 
avoid  any  misunderstanding  and  any  accusation  of 
bad  faith,  the  question  should  be  determined  in  each 
case  by  an  express  accord  between  the  contracting 
parties. 

A  more  complex  question,  and  one  often  discussed, 
is  that  of  the  revictualing  of  a  besieged  place.  The 
country  to  which  the  place  belongs  will  make  an 
effort  to  effect  a  revictualing  during  the  armistice. 
In  other  days,  an  effort  would  be  made  to  revictual  a 
place  still  capable  of  resistance,  the  remaining  places 
being  turned  over  to  the  besieger.  The  question  is 
presented  under  a  double  aspect: 

1.  Should  an  armistice  necessarily  contain  a  re- 
victualing clause? 

2.  Lacking  this  clause,  may  one,  after  signing 
an  armistice,  insist  upon  a  revictualing? 

In  October,  1870,  Mr.  Thiers  wished  to  negotiate 
an  armistice  which  would  have  permitted  elections  to 
be  held  and  a  legislative  assembly,  capable  of  accept- 
ing a  treaty  of  peace,  to  be  convened.  Mr.  Thiers 
asked  that  during  the  armistice,  Paris  might  be  re- 
victualed  and  that  the  army  of  investment  should  al- 
low the  necessary  provisions  to  pass.  '  If  the  armis- 
tice does  not  end  in  peace/ '  said  he,  "it  is  necessary 
that  when  it  ends  the  belligerents  should  find  them- 
selves in  the  same  situation  as  at  the  beginning  of  the 
armistice.  Besieged  cities  should  therefore  be  per- 
mitted to  revictual  themselves  in  proportion  to  the 
length  of  the  armistice,  otherwise  the  besieger  would 
profit  from  the  consumption  of  food  resulting  from 
the  very  length  of  the  armistice.' '  Bismark  did  not 
wish  to  allow  the  revictualing  except  on  the  condition 
that  one  of  the  forts  of  Paris  be  ceded.  While  this 
was  going  on,  the  insurrection  of  October  31,  1870, 


INTERNATIONAL    LAW  175 

which  interrupted  the  negotiations,  broke  out  in 
Paris.  The  claim  of  Bismark  was  wrongfully  con- 
sidered very  unjust.  As  a  matter  of  fact,  the  ques- 
tion was  not  one  of  right  but  of  interest  alone,  which 
each  of  the  contracting  parties  was  at  liberty  to  con- 
sider from  its  own  standpoint. 

Where  the  question  may  become  threatening  is 
where  the  armistice  is  silent  in  regard  to  revictualing. 
May  the  besieged  place  revictual  itself?  To  ask  the 
question  is  to  answer  it.  It  is  certain  that  the  status 
quo  should  be  maintained.  As  a  matter  of  fact,  when 
revictualing  clauses  appear  in  an  armistice,  they  set 
forth  the  dates,  and  the  points  determined  upon,  when 
and  where  the  trains  may  cross  the  lines.  The  besieger 
being  master  of  his  lines,  the  besieged  can  not  assume 
the  right  of  causing  them  to  be  opened  to  his  trains, 
outside  of  any  convention.  We  must  apply  here 
what  has  already  been  said  in  the  case  of  a  siege  in 
regard  to  useless  mouths  being  allowed  to  depart: 
there  exist  only  the  rights  of  humanity  limited  by 
military  necessity,  rigorous  but  indispensable. 

In  the  armistice  of  January  28,  1871,  there  are 
clauses  on  revictualing.  But  they  are  all  of  a  par- 
ticular character,  since  Paris  had  capitulated.  The 
Germans  were  under  the  necessity  of  seeing  that  the 
revictualing  of  Paris  did  not  interfere  with  their  own 
methods  of  revictualing  by  making  food  scarce. 

Another  question  presents  itself  with  regard  to 
an  armistice:  may  the  inhabitants  of  the  country  cir- 
culate freely  between  the  two  armies?  This  is  a 
question  for  the  belligerents  to  decide,  they  alone  be- 
ing capable  of  appreciating  the  advantages  or  disad- 
vantages of  any  freedom  which  they  might  permit 
in  regard  to  this.  In  1871,  in  France,  facilities  were 
granted  because  of  the  elections,  and  not  a  few  peo- 
ple profited  by  this  to  procure  for  themselves  safe- 
conducts  under  pretense  of  being  electoral  candidates, 


176  NINTH    LECTURE 

a  matter  in  regard  to  which  the  truth  clearly  could 
not  be  verified  beforehand. 

In  any  case  an  armistice  is  not  peace,  even  tem- 
porarily. The  state  of  war  continues,  and  with  it  all 
the  rights  which  follow.  The  application  of  the  laws 
of  war  does  not  cease. 

Violation  of  the  Armistice. -An  armistice  is 
to  last  for  a  certain  length  of  time.  But  the  conven- 
tion is  subject  to  denunciation,  if  its  terms  be  not  ob- 
served, this  is  a  natural  right.  Between  individuals  a 
judgment  is  not  necessarily  a  matter  of  right,  it  is 
the  judge  who  pronounces  it.  Between  nations  or 
between  armies  one  party  considers  itself  no  longer 
bound  when  the  other  party  has  failed  in  its  engage- 
ments. Then  comes  in  the  application  of  the  maxim: 
"one  takes  the  law  into  ones  own  hands,"  and  the 
struggle  recommences,  because  one  may  not  only  re- 
pel an  attack  at  a  point  where  it  is  made  in  violation 
of  the  armistice,  but  also  take  the  offensive  at  other 
places. 

However,  in  order  to  avoid  any  accusation  of  bad 
faith,  an  individual  violation  must  be  distinguished 
from  a  collective  one.  An  act  of  violence  committed 
by  an  individual  or  by  an  isolated  soldier,  would  not 
carry  with  it  the  violation  of  an  armistice,  properly 
speaking.  It  would  give  the  right  to  claim  punish- 
ment for  the  culprit,  and  if  there  should  be  occasion 
for  it,  indemnity  for  the  loss  suffered.  In  order  that 
there  shall  be  a  violation,  there  must  be  a  reprehen- 
sible act  on  the  part  of  the  troops  of  one  of  the  con- 
tracting parties. 

Relations  of  a  Belligerent  with  the  Popu- 
lation of  the  Enemy's  Territory.— These  rela- 
tions are  at  least  as  hard  to  determine  as  those  be- 
tween the  belligerents.  A  belligerent  may  find  him- 
self in  contact  with  the  inhabitants  of  an  enemy's  ter- 
ritory, under  two  different  situations: 


INTERNATIONAL    LAW  177 

1.  Invasion,  which  is  the  material  fact  of  pene- 
trating the  adversary's  territory.  One  struggles  to 
maintain  oneself  there;  one  may  be  forced  out;  it 
may  be  only  a  passing  incursion. 

2.  Occupation.  One  has  penetrated  into  the 
enemy's  country;  the  struggle  has  passed  beyond. 
One  is  established  on  a  portion  of  the  territory  where 
hostilities  have  ceased  and  where  one  may  act  as 
master.  This  is  the  ' 'occupation  of  war."  The  ex- 
pression is  more  restricted  than  that  of  "military  oc- 
cupation." 

Military  Occupation.  -This  term  is  applied  to 
the  case  where  troops  operate  in  a  country  which  is 
not  their  own,  and  the  case  may  result  from  very 
varied  circumstances.  For  instance,  the  legal  sover- 
eign of  a  country  may  call  upon  a  foreign  force  to 
help  resist  insurgent  troubles  which  menace  his  au- 
thority. This  is  called  "intervention"  in  the  interior 
affairs  of  a  country.  In  the  period  of  reaction  which 
followed  1815,  Austrian  troops  were  sent  to  Piedmont, 
to  Naples,  and  into  the  Papal  States  to  suppress  lib- 
eral movements.  In  1822  France  intervened  in  Spain i 
its  troops  remained  there  for  a  certain  length  of  time 
with  the  consent  of  the  very  uninteresting  Ferdinand 
VII,  for  the  purpose  of  maintaining  order,  which  had 
been  restored  for  his  benefit.  The  French  occupied 
Tunis,  at  the  start,  without  the  consent  of  the  sover- 
eign of  that  country;  they  remained  there  with  his 
consent,  and  the  occupation  is  therefore  no  longer  in 
enemy  country  but  in  foreign  country,  because  it  de- 
pends on  another  sovereignty  than  that  of  the  occu- 
pant. 

Today,  as  a  matter  of  law,  there  exists  a  very 
curious  occupation;  it  is  that  of  the  Ottoman  countries 
of  Bosnia  and  Herzegovina  by  Austria-Hungary. 
Article  25  of  the  treaty  of  Berlin  has  not  yet  been 
abrogated,   but  Austria  has  understood  its  right  of 


178  NINTH    LECTURE 

police  in  a  more  than  broad  fashion,  since  one  has 
been  able  to  see  for  some  time  in  Vienna,  Bosnian 
troops  in  the  service  of  Austria,  and  the  latter  power 
has  just  announced  in  a  very  cavalier  way,  that  it 
has  purely  and  simply  annexed  these  two  Turkish 
provinces  which  had  been  confided  to  its  care.  This 
is  a  proclaimed  right  of  conquest  in  full  time  of  peace. 
As  a  matter  of  fact,  it  is  but  just  to  add  that  there 
has  been  but  little  change,  since  the  authority  of  the 
Sultan,  the  nominal  sovereign,  was  not  great.  But 
as  a  matter  of  law  the  change  is  serious.  There  is 
presented,  particularly,  the  very  grave  fact  of  a  treaty 
modified  by  the  will  of  only  one  of  the  contracting 
parties.  Russia  had  done  the  same  thing  in  October, 
1870,  in  regard  to  the  neutralization  of  the  Black  Sea. 

Crete,  under  the  nominal  dependence  of  the  Sul- 
tan, has  been  occupied  by  four  European  powers  and 
administered  by  a  special  commissioner  designated 
through  an  understanding  between  these  four  powers 
and  upheld  by  a  species  of  international  gendarmerie. 

It  may  be  said  that  the  French  occupy  a  portion 
of  Morocco  with  the  tolerance  of  its  Sultan,  but  they 
went  there  without  his  authorization,  but  as  the  re- 
sult, however,  of  the  murder  of  French  nationals. 
Their  right  of  occupation  is  a  simple  fact. 

In  the  same  way  the  English  have  occupied 
Egypt,  since  the  bombardment  of  Alexandria  in  1882, 
and  they  have  maintained  themselves  there  through 
the  tolerance  of  the  interested  powers. 

Legal  Rights  of  the  Occupying  Power. - 
When  an  army  occupies  a  country,  one  must  admit 
that  that  army  has  certain  autonomous  legal  rights, 
and  that  it  may  protect  itself,  should  the  case  be  nec- 
essary, by  the  use  of  its  own  military  system  of  jus- 
tice. France  had  occasion  to  assert  this  view  in  1881 
in  regard  to  the  occupation  of  Tunis.  That  country 
was  then  under  the  regime  of  '  'capitulations/ '    For- 


INTERNATIONAL    LAW  179 

eigners  were  thus  subject  to  the  sole  justice  of  their 
consular  tribunals.  Many  attempts  at  murder  were 
committed  against  French  soldiers  by  Italian  subjects 
whose  national  sentiments  were  irritated  by  the 
French  occupation.  At  the  beginning,  these  subjects 
were  turned  over  to  the  Italian  consular  authorities, 
who  showed  themselves  very  weak  in  the  repression 
of  offenses,  and  who,  in  the  case  of  crime,  would  send 
the  authors  thereof  to  Italy;  in  most  cases  this 
amounted  to  immunity.  The  French  could  not  toler- 
ate such  a  condition.  They  were  occupying  Tunis  by 
the  wish  of  the  territorial  sovereign,  the  Bey  of 
Tunis;  but  the  latter  did  not  have  the  right  to  pass 
judgment  on  foreigners  and  could  not  turn  over  the 
right  to  the  French.  A  commission  of  jurisconsults, 
assembled  at  Paris  in  1882,  studied  this  delicate  ques- 
tion ;  the  commission  was  unanimous  in  deciding  and 
in  proclaiming,  that  an  army  in  a  foreign  land 
had  the  right  to  cause  itself  to  be  respected  and  to 
defend  itself  through  its  own  jurisdiction.  As  a  re- 
sult of  this  decision,  courts-martial  took  cognizance 
of  the  crimes  and  offenses  committed  by  the  Italians, 
whose  attempts  at  once  ceased.  It  may  be  said  that 
sometimes  (it  was  the  case  with  regard  to  the  occu- 
pation of  Rome  by  the  French  from  1849  to  1870),  the 
sovereign  who  has  begged  the  intervention  of  a  for- 
eign army  leaves  to  that  army  the  right  to  exercise, 
by  an  implied  concession,  a  certain  authority.  This 
could  not  be  done  in  the  case  of  Tunis.  It  was  nec- 
essary there  to  affirm  that,  by  the  nature  of  things, 
an  army  may  protect  itself  by  means  of  its  own  judi- 
cial powers. 

This  is  what  should  be  held  with  regard  to  the 
French  troops  landed  at  Casa  Blanca  on  the  Atlantic 
coast  of  Morocco;  the  question  was  submitted  to  The 
Hague  with  a  view  to  determining  whether  the 
French  army  in  Morocco  might  cause  its  military  tri- 


180  NINTH    LECTURE 

bunals  to  take  action  in  regard  to  deserters,  even 
though  they  were  not  Frenchmen. 

Military  Occupation  by  way  of  Guaranty. 
—Such  an  occupation  takes  place  through  a  conven- 
tion between  the  legal  sovereign  of  the  occupied  ter- 
ritory and  the  government  to  which  the  occupying 
troops  belong.  It  is  thus  that  a  vanquished  country 
may  have  to  submit  to  the  occupation  by  the  conqueror 
by  virtue  of  a  treaty  of  peace,  and  to  insure  the  exe- 
cution of  certain  clauses  of  the  treaty.  The  occupa- 
tion serves  as  a  security,  for  example,  for  the  pay- 
ment of  a  war  indemnity.  It  may  last  for  a  shorter 
or  a  longer  time.  As  a  result  of  the  Franco-German 
war,  there  was  an  agreed-upon  military  occupation  of 
certain  of  the  French  departments  by  the  Germans. 
The  evacuation  was  gradual  and  was  accomplished 
as  the  partial  payments  of  the  war  indemnity  were 
made.  Under  this  system,  the  legal  sovereignty  of  the 
occupied  country  is  respected,  special  clauses  of  the 
treaty  of  peace  safeguarding  this  and  reconciling  it 
to  the  sovereignty  of  fact  of  the  occupying  forces. 

Occupation  as  a  War  Measure.— In  a  war  oc- 
cupation there  is  no  convention  or  understanding  be- 
tween the  belligerents.  It  is  a  situation  of  fact  of  an 
essentially  temporary  nature.  It  will  cease  entirely, 
even  during  the  course  of  war,  if  the  occiipant  be 
chased  from  the  occupied  territory;  or  if  the  war  oc- 
cupation is  transformed  with  the  arrival  of  peace  into 
an  evacuation  pure  and  simple,  or  into  a  military  oc- 
cupation, by  agreement,  in  the  nature  of  a  guaranty, 
or  by  the  cession  to  the  enemy  of  the  territory  occu- 
pied by  him.  In  1870-71  Burgundy  and  Franch-Comte 
were  occupied  under  the  head  of  a  guaranty;  then 
evacuated;  whereas  Alsace-Lorraine,  which  was  occu- 
pied, was  abandoned  by  France  to  German  sover- 
eignty. 


INTERNATIONAL     LAW  181 

When  war  ends  without  a  treaty  of  peace,  occu- 
pation changes  of  itself.  The  unfortunate  adversary, 
annihilated,  completely  disappears,  absorbed  by  the 
conqueror  by  the  very  fact  of  war.  No  treaty  of  peace 
is  possible.  It  is  under  these  conditions  that  Algeria 
was  conquered  by  France;  there  was  only  a  capitula- 
tion of  which  certain  stipulations  are  still  in  vigor  in 
regard  to  that  which  concerns  the  situation  of  the 
native  Mussulmans:  respect  for  their  laws  and  for 
their  traditions. 

In  1866  Prussia  aggrandized  itself  by  the  duchies 
on  the  Elbe,  Schleswig  and  Holstein;  there  were 
treaties  by  virtue  of  which  Denmark  recognized  in 
Prussia  and  in  Austria  sovereign  rights  over  these 
duchies.  Austria  ceded  at  Prague,  in  1866  to  Prussia, 
the  rights  of  co-dominion  established  in  1865  at  Gas- 
tein.  The  Kingdom  of  Hanover  and  the  free  city  of 
Frankfort  were  incorporated  in  Prussia  by  a  Prussian 
law.  The  private  property  of  the  King  of  Hanover 
was  confiscated,  and  Bismark  used  it  to  create  the 
'  'reptile  fund"  with  which  he  incited  the  press  to 
awaken  a  Prussian  sentiment  in  Hanover. 

The  same  thing  occurred  in  the  South  African 
war.  The  commander  of  the  English  troops  declared 
the  country  annexed  as  early  as  September,  1900,  and 
it  was  only  in  June  1902,  that  there  was  a  capitula- 
tion in  which  certain  Boer  chiefs  joined.  These  be- 
came, soon  after  their  return  home  after  the  struggle, 
the  chiefs  of  the  colonial  government,  which  had  be- 
come autonomous.  A  species  of  South  African  con- 
federation has  been  organized,  of  which  Pretoria  is  the 
capital.  We  have  here  an  act  of  very  wide  confidence 
on  the  part  of  England  towards  a  country  which  had 
been  subjugated,  quite  harshly  on  the  whole.  (The 
English  have  been  criticized  for  employing  Kaffirs  as 
soldiers  and  with  putting  on  foot  other  reprehensible 
means.)    There  was  no  treaty  of  peace;  there  was 


182  NINTH    LECTURE 

"debellatio, "  according  to  an  old  expression,  that  is 
to  say  complete  defeat.  The  conqueror  imposed  his 
absolute  will.  The  Boer  chiefs  have  shown,  since 
then,  a  loyalty  which  has  entirely  justified  the  confi- 
dence of  England  but  which  many  governments  would 
not  have  dared  to  imitate. 

On  a  special  point,  a  war  occupation,  which  is  a 
pure  matter  of  fact,  may  lead  to  a  convention.  It  is 
in  the  case  of  a  place  that  capitulates  after  an 
honorable  resistance,  of  which  the  conqueror  is 
willing  to  take  notice  by  abstaining  from  exercising 
certain  rights.  The  capitulation  will  indicate  the 
conditions  of  the  occupation  which  the  military  chiefs 
may  have  the  right  to  negotiate,  within  the  scope  of 
their  authority. 

Convention  Between  a  Belligerent  and  a 
Municipality. — The  question  has  been  presented  of 
whether  the  municipal  government  of  an  open  city 
might  also  make  conventions  with  a  belligerent.  We 
must  draw  a  distinction. 

If  an  open  city  has  been  attacked  and  has  de- 
fended itself,  and  a  convention  results  between  the 
municipality  and  the  occupying  force,  this  conven- 
tion should  be  respected." 

The  case  would  be  different  if  it  had  relation  to 
an  open  city  where  there  had  been  no  struggle.  It 
is  thus  that  the  convention  concluded  on  September 
19,  1870,  between  a  Prussian  officer  under  a  flag  of 
truce  and  the  City  of  Versailles  was  not  ratified  by 
the  Prince  Royal.  There  had  been  no  defense  of  the 
city,  and  the  convention  did  not  seem  justified.  On 
the  other  hand,  a  convention  entered  into  by  the  city 
of  Dijon,  which  had  defended  itself,  was  held  good. 

It  has  also  been  asked  whether  the  municipal 
authorities  have  the  necessary  powers  to  enter  into 
a  convention  with  the  enemy.  One  may  not  reason- 
ably expect  that  the  laws  of  a  city  should  regulate 


INTERNATIONAL    LAW  183 

such  questions.  A  municipality  which  tries  to  treat 
with  the  enemy  should  be  careful  to  remember  that 
it  does  so  on  its  own  responsibility.  Clearly,  such 
procedure,  hardly  comes  within  administrative  law; 
but,  nevertheless,  an  act  of  a  municipality  should  be 
considered  as  valid  if  it  has  for  its  purpose  to  care 
for  the  interests  of  the  locality  without  losing  sight 
of  those  of  the  country.  We  must  consider  interests 
and  common  sense  more  than  the  formal  rules  of  the 
law,  and  interests  and  common  sense  join  to  show 
the  reciprocal  advantages  for  the  occupant  and 
occupied  to  be  derived  from  sustaining  municipalities 
and  their  work  in  so  far  as  regards  conventions  with 
the  enemy. 

Occupation  being  purely  a  matter  of  fact,  some 
have  thought  that  it  excludes  all  judicial  considera- 
tions.   They  said: 

"If  the  occupant  maintains  some  moderation, 
respects  persons  and  goods,  it  is  above  all  because  it 
is  his  interest  to  do  so.  It  is  not  possible  to  regulate 
the  relations  between  the  occupant  and  the  occupied; 
one  must  leave  to  the  occupation  its  character  of 
violence,  and  to  impose  conventional  rules  would  be 
to  recognize  in  the  invader  certain  rights  and  to 
appear  to  render  them  legitimate/ ' 

This  opinion  cannot  be  accepted;  a  set  of  legalized 
regulations  is  at  least  as  necessary  between  the  occu- 
pant and  the  occupied  as  between  the  belligerents 
themselves.  Besides,  those  who  refuse  to  recognize 
a  bond  of  law  between  the  occupant  and  the  occupied 
seek,  nevertheless,  to  impose  on  the  invader  certain 
rules,  in  the  name  of  his  own  interests,  of  which  he 
should  be,  it  seems  to  us,  the  sole  judge. 

The  exaggerated  susceptibility  which  would  for- 
bid any  convention  of  this  nature  to  be  concluded, 
on  the  pretext  of  not  recognizing  the  right  of  force, 
simply  leads  to  allowing  every  latitude  to  the  occu- 


184  NINTH    LECTURE 

pant.  The  purpose  of  conventions  is  not  so  much  to 
recognize  in  the  adversary  the  right  to  do  such  and 
such  a  thing  as  it  is  to  limit  what  he  may  do.  At 
the  conference  of  Brussels  the  Belgian  delegate,  in  a 
tragic  speech,  showed  a  patriotic  inhabitant  receiving 
information  at  the  stake,  to  which  an  act  of  patriotic 
heroism  had  led  him,  of  a  convention  which  had 
been  accepted  by  his  government,  and  by  virtue  of 
which  the  enemy  was  punishing  him  for  the  manner 
in  which  he  had  devoted  himself  to  his  country. 

It  was  the  representatives  of  the  smaller  powers, 
which  are  more  particularly  exposed  to  invasion, 
who,  at  the  convention  of  1907,  showed  signs  of  a 
keen  susceptibility  in  this  regard.  They  were  op- 
posed to  the  preparation  of  a  "code  of  defeat* '  for 
the  use  of  the  conqueror.  Mr.  de  Martens  replied, 
very  judiciously,  that  it  was  rather  a  question  of 
elaborating  the  statutes  of  "an  insurance  society 
against  mutual  abuses."  An  artifice  of  editing 
dissipated  the  last  hesitations.  The  convention  of 
1907  is  very  short,  but  is  followed  by  a  set  of  rather 
long  regulations.  And  by  virtue  of  Article  1  of  the 
convention,  the  contracting  powers  engage  them- 
selves to  give  to  their  troops  instructions  conforming 
to  the  regulations.  The  procedure  is  a  longer  one, 
but  it  amounts  as  a  whole  to  fixing  limits  to  the 
undefined  action  of  the  occupying  power.  Therefore, 
when  measures  are  taken  by  the  troops  in  enemy 
territory,  it  is  by  virtue  of  instructions  given  to 
these  troops  in  accordance  with  the  regulations  ac- 
cepted by  the  various  states,  and  not  by  virtue  of 
any  right  conferred  by  the  sovereign  of  the  invaded 
country.     This  distinction  is  rather  subtle. 

The  requirements  of  the  regulations  are  obliga- 
tory. Article  3  of  the  convention  establishes  the 
principle  of  the  payment  of  an  indemnity  by  the 
belligerent  party  which  shall  violate  their  provisions. 


TENTH  LECTURE 


Occupation  and  Conquest 

IN  other  days,  occupation  and  conquest  were 
rather  easily  confused,  so  that  by  the  sole  fact 
of  occupation,  the  belligerent  considered  himself  as 
having  the  right  to  conduct  himself  as  a  sovereign, 
having  the  right,  for  example,  to  exact  from  the  in- 
habitants an  oath  of  fidelity,  to  coin  money,  to  raise 
troops,  etc. ;  things  are  not  done  in  the  same  way  to- 
day. And  it  is  admitted  that  while  the  occupier  has 
certainly  an  authority  of  fact  over  the  occupied  ter- 
ritory, this  authority  must  combine  itself  with  the 
rights  of  the  legal  sovereign.  This  amalgamation  is 
not  always  easy.  From  the  dualism  a  situation  has 
arisen  which  is  unfortunate,  even  painful,  for  the 
inhabitants.  Art.  44  of  The  Hague  rules  has  tried  to 
remedy  this  by  warning  the  invader  not  to  require  of 
the  invaded  people  services  which  would  be  at  vari- 
ance with  their  duties  to  their  own  country  or  which 
would  disturb  their  conscience.  These  moral  ideas 
constitute  real  progress,  but  it  is  not  yet  enough. 

When  is  there  Occupation?— By  reason  of  the 
importance  of  the  consequences  which  occupation  en- 
tails it  is  important  to  know  when  it  may  be  said  that 
there  is  an  occupation  or  when  a  simple  invasion. 
We  have  seen  how,  in  case  of  invasion,  the  inhabi- 
tants might  participate  in  the  struggle  as  belliger- 
ents (Art.  2  of  the  rules  of  The  Hague.)  But  this 
Art.  2  is  applicable  only  in  unoccupied  territory. 
What  may  happen  in  occupied  territory  is  not  men- 
tioned. As  a  consequence,  the  tendency  of  a  belliger- 
ent will  be  to  readily  consider  a  territory  as  under 

185 


186  TENTH    LECTURE 

occupation  by  him,  because  then  he  may  repress  with 
vigor  such  acts  of  the  inhabitants  as  are  opposed  to 
his  interests,  and  this  will  greatly  strengthen  the 
action  of  his  army. 

The  rules  of  The  Hague  (Art.  42)  state: 

"Territory  is  considered  occupied  when  it  is 
actually  placed  under  the  authority  of  the  hostile 
army. 

"The  occupation  extends  only  to  the  territory 
where  such  authority  has  been  established  and  can 
be  exercised.' ' 

It  may  therefore  be  said  that  in  an  effective  oc- 
cupation two  elements  are  found:  (1)  the  positive 
element— the  occupant  is  able  to  make  his  authority 
respected;  (2)  the  negative  element — the  legal  sov- 
ereign of  the  occupied  country  is  not  able  to  do  so. 

Notification  of  Occupation.  -  It  is  desirable 
that  the  occupant  notify  the  inhabitants  of  the  fact 
of  his  occupation  in  order  that  the  population  may 
know  what  it  has  to  expect,  and  may  recognize  the 
risks  which  it  runs  in  giving  itself  over  to  acts  con- 
trary to  the  interests  of  the  enemy.  The  Hague  con- 
vention does  not  speak  of  such  notice,  but  it  would 
seem  that  the  interests  of  the  occupant  and  of 
the  occupied  demand  it. 

Insurrection  in  Occupied  Country.- A  most 
unfortunate  case  is  that  of  an  insurrection  in  occupied 
territory.  The  population  accepts  the  presence  of  the 
enemy;  it  submits  itself  then  suddenly,  as  the  result 
of  plots,  soldiers  of  the  occupying  army  are  murdered. 
This  is  evidently  an  act  of  perfidy,  and  one  which 
merits  punishment;  but  one  should  not  confound  this 
criminal  action  with  open  rebellion  which  occurs 
when  the  inhabitants  rebel  by  an  understanding  with 
the  troops  of  their  own  country.  The  position  of  the 
population  then  becomes  difficult  to  qualify,  and  while 
it  would  be  an  exaggeration  to  apply  to  its  conduct 


INTERNATIONAL    LAW  187 

the  term  '  'treason/ '  the  occupant  certainly  has  the 
right  to  punish  the  inhabitants  who  have  taken  part 
in  an  action  against  him  (and  this  over  and  above  any 
individual  odious  act  of  murder  and  of  brigandage), 
because  it  was  understood  that  the  inhabitants  were 
not  to  be  disturbed  but  this  only  on  condition  that  they 
remained  inoffensive.  Sometimes  extremely  vigorous 
measures  have  been  taken,  not  only  against  inhabi- 
tants who  had  taken  part  in  the  acts  of  violence, 
but  even  against  populations  which  were  considered 
to  be  merely  moral  accomplices.  A  belligerent  has 
not  the  right  to  punish  the  parties  to  a  collective 
rising  by  treating  them  as  brigands  or  assassins. 

This  question  has  not  been  determined  in  a  pre- 
cise way;  it  was  hardly  possible  in  a  short  time  to  es- 
tablish a  general  rule,  since  everything  in  the  case 
depends  upon  the  circumstances.  It  is  to  this,  that 
reference  is  made  in  the  preamble  of  The  Hague  con- 
vention, which  offers  as  a  sole  solution,  that  in  un- 
foreseen cases  belligerents  must  be  inspired  by  the 
general  rules  of  international  law  and  the  laws  of  hu- 
manity— very  vague  terms  but  which  it  was  difficult 
to  make  more  specific. 

Here  again,  as  In  the  case  already  mentioned, 
the  word  treason  must  be  taken  in  the  foreign  or  in- 
ternational sense  and  not  in  the  American.  No  al- 
legiance is  due  from  the  population  of  occupied  ter- 
ritory to  the  sovereign  of  the  occupying  army.  (Trea- 
son with  us  is  an  extremely  technical  offense.) 

Relations  Between  the  Occupant  and  the 
Occupied  Country.  -The  occupant  has  two  ends  in 
view: 

(1)  To  protect  his  troops  against  attack. 

(2)  To  interrupt  the  relations  of  the  population 
with  its  own  legal  government. 

From  this  there  results,  between  the  occupant 
and  the  population  of  the  occupied  country,  complex 


188  TENTH    LECTURE 

relations  which  may  be  classified  under  three  heads 
as  follows: 

(1)  Legislation  in  the  occupied  country. 

(2)  The  administration  of  justice  in  the  occupied 
country. 

(3)  The  economic  and  administrative  measures 
which  the  occupant  may  take. 

(1)  Legislation  Applicable  to  the  Occupied 
Territory. —This  legislation  may  have  two  sources: 
one,  the  principal,  the  law  of  the  invaded  country 
and,  second,  the  will  of  the  occupant. 

The  occupation  being  a  provisional  situation  and 
not  a  conquest,  the  local  laws  do  not  disappear.  If 
the  occupation  becomes  final,  the  occupant,  becoming 
a  sovereign  in  fact,  may  do  what  he  pleases.  In  other 
times  annexed  provinces  retained  their  legislation, 
but  now  there  is  a  tendency  to  make  the  law  uniform 
for  all  sections  within  the  new  confines  of  the  state. 

Today,  therefore,  the  rule  consists  in  maintain- 
ing the  legislation  in  existence;  this  is  what  Article 
43  of  the  rules  of  The  Hague  expresses  as  follows: 

'  The  authority  of  the  legitimate  power  having 
in  fact  passed  into  the  hands  of  the  occupant,  the 
latter  shall  take  all  the  measures  in  his  power  to  re- 
store, and  ensure,  as  far  as  possible,  public  order  and 
safety,  while  respecting,  unless  absolutely  prevented, 
the  laws  in  force  in  the  country/ ' 

"Unless  absolutely  prevented,"  says  the  article; 
we  must  of  course  admit  that  the  occupant  may  modify 
or  suppress  laws  which  are  objectionable  to  him,  as 
for  instance  a  law  in  regard  to  the  freedom  of  meet- 
ings and  of  the  press;  in  the  same  way,  he  will  pre- 
vent the  application  of  the  laws  in  regard  to  recruit- 
ment. But  outside  of  these  exceptions  the  occupant 
must  maintain  the  legislation  in  force;  such  is  the 
new  and  present  principle. 


INTERNATIONAL    LAW  189 

A  contrary  view  to  a  certain  extent,  was  ap- 
parently formulated  in  G.  0.  100,  1863;  which  con- 
sidered proper  the  suspension  of  the  civil  and  criminal 
law  in  the  occupied  country. 

While  it  is  true  that  G.  0.  100  holds  that  "Martial 
Law"  consists  in  the  suspension  of  the  criminal  and 
civil  law  and  of  the  domestic  administration  and  gov- 
ernment in  the  occupied  place  or  territory,  and  the 
substitution  therefor  of  military  rule  and  force,  it 
also  provides  for  the  retention  of  the  administration 
of  the  local  law  when  deemed  advisable.  The  differ- 
ence today,  therefore,  is  rather  one  of  form  than  of 
substance  for  one  need  not  allow  the  operation  in  oc- 
cupied territory  of  laws  which  are  objectionable  to  the 
invader,  and  normally  the  latter  will  always  have 
preferred  to  be  saved  the  trouble  of  changing  a  sys- 
tem when  the  existing  one  will  serve. 

A  second  source  of  legislation  is  the  will  of  the 
occupant.  He  has  the  right  to  repress  certain  acts  of 
the  inhabitants:  cutting  of  telegraph  wires,  com- 
munication with  the  enemy,  insurrection;  but  he  must 
avoid  summary  executions  and  not  insist,  in  a  tyran- 
nical way,  on  collective  responsibilities,  as  the  Ger- 
mans did  in  France,  in  1870. 

In  regard  to  this,  Article  50  of  The  Hague  rules 
decides  that: 

"No  general  penalty,  pecuniary  or  otherwise, 
shall  be  inflicted  upon  the  population  on  account  of 
acts  of  individuals  for  which  they  cannot  be  regarded 
as  jointly  and  severally  responsible." 

(2)  The  Administration  of  Justice  in  the 
Occupied  Territory.— In  occupied  territory,  justice 
must  be  administered  under  two  forms  working  along 
parallel  lines: 

(a)  Under  local  jurisdiction. 

(b)  Under  the  jurisdiction  of  the  occupant. 

(a)    Local    Jurisdiction.  —  Local    jurisdiction 


190  TENTH    LECTURE 

will  be  in  force  at  all  points  where  the  national  laws 
of  the  occupied  territory  are  in  force.  This  is  natural; 
but  there  are  restrictions  imposed  by  the  very  nature 
of  things;  thus,  local  jurisdiction  cannot,  evidently, 
take  knowledge  of  acts,  criminal  in  themselves  under 
the  local  law,  committed  by  the  inhabitants  in  the 
interest  of  the  occupant;  such  acts  are,  in  the  eyes  of 
the  local  population,  acts  of  treason  which  they  could 
not  pass  judgment  upon  without  placing  themselves 
in  rebellion  against  their  de  facto  sovereign,  the  oc- 
cupant. They  may  simply  make  a  note  of  them  with 
a  view  to  establishing  a  basis  for  a  later  prosecution 
when  the  sovereign  de  jure  shall  have  resumed  pos- 
session of  his  full  sovereignty.  It  was  thus  that  in 
1870  a  German,  established  in  Nancy  before  the  war, 
having  undertaken,  during  the  occupation,  to  furnish 
supplies  voluntarily  and  for  his  own  profit,  to  the 
German  armies,  was  prosecuted  at  the  end  of  the 
war  under  the  77th  Article  of  the  French  penal  code. 
This  German  was  domiciled  in  France  and  was, 
therefore  subject  to  the  French  penal  law.  He  should 
have  respected  it. 

The  occupant  has  every  interest  to  see  that  local 
justice  follows  its  course;  therefore  he  should  assist 
it  by  lending  to  it  the  strength  of  his  public  force— 
this  may  be  necessary  since  the  local  authority  has 
no  other  force  at  its  disposal.  It  has  sometimes  been 
suggested  that  the  acts  of  local  justice  were  vitiated 
by  the  fact  that  the  criminal  had  been  arrested  by 
an  agent  of  the  occupant.  There  is  here  an  unreas- 
onable idea,  which  would  render  impossible  the  work- 
ing of  national  justice. 

How  Should  Justice  Itself  be  Rendered?— 
It  should  be  rendered  in  the  name  of  the  legal  sov- 
ereign. The  idea— a  very  clear  one  today— which 
distinguishes  occupation  from  conquest,  cannot  per- 
mit that  local  justice  should  be  rendered  in  the  name 


INTERNATIONAL    LAW  191 

of  the  occupant.  In  1870  the  Germans  did  not  wish 
to  have  justice  rendered  in  the  name  of  the  Govern- 
ment of  the  National  Defense,  which  was  not  recog- 
nized by  the  powers,  and  they  proposed  to  the  French 
tribunals  to  render  justice  in  the  name  of  the  Empress- 
Regent  or  in  that  of  the  allied  sovereigns,  which  was 
perfectly  absurd.  So  the  French  tribunals  suspended 
their  functions.  These  tribunals  were  sometimes 
wrong  in  anticipating,  after  a  fashion,  the  German 
objections,  since  a  judgment  does  not  bring  into 
play  the  chief  of  the  state;  the  latter  is  only  brought 
forward  in  the  record  prepared  for  enforcing  a 
judgment,  when  the  person  who  has  been  condemned 
has  not  submitted  himself  willingly  to  the  decision  of 
the  tribunal,  and  it  is  always  well  to  have  a  decision 
even  if  it  cannot  be  immediately  put  into  execution. 

(b)  Jurisdiction  of  the  Occupant.— An  army 
carries  with  it  its  judicial  powers  which  it  exercises 
without  difficulty  by  applying  the  ordinary  law  in 
all  cases  having  relation  to  its  internal  affairs;  but  in 
addition,  military  jurisdiction  extends  to  acts  com- 
mitted by  civilians  against  the  army,  and  this  is 
natural.  It  is  not  possible,  evidently,  in  such  cases 
to  have  recourse  to  the  local  tribunals;  on  one  side, 
the  army  of  the  occupant  may  have  no  confidence  in 
them;  on  the  other  side,  one  cannot  impose  on  these 
tribunals  the  punishment  of  their  nationals  for  acts 
committed  against  the  occupant. 

The  army  of  occupation  thus  protects  itself  by 
its  own  methods  of  justice  against  all  acts  directed 
against  it,  and  vice  versa,  its  jurisdiction,  through 
courts-martial  will  take  cognizance  of  acts  committed 
by  soldiers  against  the  inhabitants.  The  jurisdiction 
of  the  occupant  works  under  its  own  rules.  But 
these  rules  are  not  always  identical.  Under  our 
legislation,  military  commissions  take  cognizance  of 
acts  committed  by  the  inhabitants  against  the  occu- 


192  EIGHTHLECTURE 

pying  soldiers,  but  they  give  to  the  inhabitants  the 
same  guaranties  of  procedure  as  to  the  members  of 
the  army.  In  1870  the  Germans  did  not  apply  such 
rules;  an  order  of  the  King  of  Prussia,  commanding 
the  German  armies,  had  fixed  the  penalties  and  the 
procedure  to  be  applied  in  certain  cases,  and  left  to 
the  military  commanders  the  care  of  organizing  the 
tribunal.  The  same  order  prescribed  an  immediate 
execution  of  judgments,  which  rendered  appeals 
impossible;  and,  as  a  matter  of  fact,  military  chiefs 
organized  justice  arbitrarily.  This  method  of  doing 
things  is  certainly  objectionable. 

3.  Economic  and  Administrative  Measures 
Which  the  Occupant  May  Take.  -These  measures 
are  very  numerous.  The  occupant  will  regulate, 
among  other  things,  the  exchange  of  money,  the 
service  of  the  mails,  the  opening  of  schools,  etc. 
But  a  question  at  once  presents  itself:  will  the  local 
functionaries  continue  in  their  functions?  Certain 
of  them,  as  for  example,  those  concerned  with  the 
finances,  will  have  received  instructions  from  their 
own  government  to  leave  the  locality;  as  to  the 
others,  it  will  depend  on  the  question  of  whether  the 
exercise  of  their  functions  may  be  more  useful  to  the 
inhabitants  than  to  the  enemy.  There  are,  in  all 
cases,  certain  services  which  will  be  maintained; 
municipal  authorities,  for  example,  will  remain,  both 
in  the  interests  of  the  the  inhabitants  and  in  that  of 
the  enemy.  For  the  former,  as  for  the  latter,  it  is 
necessary  to  have  representatives  who  may  be  able  to 
enter  into  arrangements  with  the  military  authorities. 
The  mission  of  these  representatives  is  always  diffi- 
cult and  very  delicate. 

Taxes.  —The  right  of  the  occupant  in  this  matter 
is  a  result  of  his  actual  sovereignty;  however,  the 
occupant  receives  the  taxes  imposed  for  the  benefit 
of  the  state,  as  a  consequence  of  his  obligation  to 


INTERNATIONAL    LAW  193 

maintain  order  and  social  conditions  in  the  occupied 
country.  For  him,  therefore,  there  is  not  in  this  a 
pure  benefit;  it  is  obvious,  nevertheless,  that  the 
occupant  will  occupy  himself  primarily  with  his  own 
needs  and  his  military  requirements.  Article  48, 
which  governs  in  this  matter,  says: 

"If,  in  the  territory  occupied,  the  occupant  col- 
lects the  taxes,  dues,  and  tolls  imposed  for  the  bene- 
fit of  the  State,  he  shall  do  so,  as  far  as  is  possible, 
in  accordance  with  the  rules  of  assessment  and 
incidence  in  force,  and  shall  in  consequence  be  bound 
to  defray  the  expenses  of  the  administration  of  the 
occupied  territory  to  the  same  extent  as  the  legiti- 
mate Government  was  so  bound.' ' 

The  restriction,  "as  far  as  is  possible,"  being 
necessary  because  it  may  be  affirmed  that  it  will 
seldom  be  possible  to  conform  to  the  system  previously 
in  force.  The  enemy  will  therefore  be  brought  by 
approximation  to  determine  a  sum  total  which  shall 
be  an  equivalent  of  the  taxes.  It  was  thus  with  the 
Germans  in  1870;  they  knew  approximately  the  allot- 
ment of  the  departmental  contingents  in  regard  to 
the  direct  taxes;  in  each  department  they  divided 
this  amount  between  the  communes  according  to 
their  population,  and  left  to  the  mayors  the  care  of 
assessing  the  communal  contingent  and  of  arranging 
for  collection.  They  even  offered  a  percentage  to 
the  mayors,  but  in  the  greater  number  of  instances 
the  latter  refused  them,  with  the  result  that  the 
German  treasury  benefitted  from  these  refusals,  by 
sums  which  might  have  entered,  by  way  of  a  refund, 
into  the  pockets  of  the  French  taxpayers. 

The  right  recognized  in  the  occupant  to  collect 
taxes  is  only  applicable  to  taxes  due  the  state,  and 
from  this  point  of  view  there  is  great  interest  in  dis- 
tinguishing private  funds  from   public  ones;  since, 


194  TENTH    LECTURE 

whereas  the  latter  are  a  good  prize,  the  first  men- 
tioned must  be  respected  by  the  occupant. 

The  Rights  of  the  Occupant  in  the  Matter 
of  Interdictions  or  Orders  Given  to  the  In- 
habitants.—In  the  matter  of  inhibitions,  the 
occupant  has  a  general  right  over  all  the  inhabitants, 
and  this  whatever  may  be  their  nationality;  but  it  is 
not  the  same  in  regard  to  orders.  The  occupant  may 
not  order  any  act  of  hostility  by  the  inhabitants 
against  their  lawful  government,  and  he  will  en- 
deavor to  impose  nothing  upon  them  which  is  con- 
trary to  their  patriotism. 

Under  the  old  regime,  the  occupant  considered 
himself  as  a  conqueror,  and  did  not  hesitate  to  raise 
troops  in  the  occupied  country.  If  this  manner  of 
doing  things  was  not  always  contrary  to  the  senti- 
ments of  the  occupied  country  (wars  of  propaganda), 
it  is  none  the  less  true  that  it  was  always  against  the 
law.  Today  such  a  measure  would  be  patently  un- 
lawful, and  no  one  dreams  of  requiring  from  the  in- 
habitants active  assistance.  The  rules  of  The  Hague 
of  1899  already  determined  in  Article  44,  that: 

"It  is  forbidden  to  compel  the  population  of  an 
occupied  territory  to  take  part  in  military  operations 
against  their  own  country.' ' 

This  question  was  taken  up  again  in  1907  in  re- 
gard to  guides,  with  the  result  that  the  practice  was 
condemned,  in  accordance  with  a  thesis  maintained 
by  the  French  delegation  and  contrary  to  the  Austro- 
Hungarian  thesis  which  was  very  energetically  sus- 
tained by  the  Russians.  The  French  delegation 
showed  that  it  was  worthy  of  our  time  not  to  oblige 
inhabitants  to  serve  as  guides  for  the  enemy;  and 
that  there  was  a  peculiar  contradiction  in  forbidding 
them  to  serve  in  the  enemy's  army  and  yet  in  per- 
mitting them  to  serve  as  guides  against  their  own 
country;  would  not  the  harm  done  to  his  country  by 


INTERNATIONAL    LAW  195 

the  inhabitant  who  guides  the  enemy  be  greater  than 
that  which  he  might  cause  it  by  simply  incorporating 
himself  in  the  enemy's  army?  This  thesis  won  out, 
and  the  new  article  44  says: 

"A  belligerent  is  forbidden  to  force  the  inhabi- 
tants of  a  territory  occupied  by  it  to  furnish  infor- 
mation about  the  army  of  the  other  belligerent,  or 
about  its  means  of  defense." 

From  this  it  may  be  said  that  a  fortiori  it  is  for- 
bidden to  the  inhabitants  to  guide  the  enemy.  Ger- 
many, Austria,  Russia,  Japan,  Bulgaria,  Roumaniaand 
Montenegro  made  reservations  in  regard  to  the  arti- 
cle. It  will  follow  that  in  case  of  a  war  with  any  of 
these  nations,  the  nations  who  agreed  to  Article  44 
would  not  be  bound  by  it,  and  might,  in  the  territory 
of  the  state  which  did  not  accept  the  article,  force  the 
inhabitants  to  serve  as  guides. 

There  exists,  besides,  another  practice  contrary 
to  the  respect  due  the  inhabitants  of  occupied  terri- 
tory, which  was  employed  in  an  objectionable  man- 
ner in  1870.  It  is  that  of  taking  hostages.  It  was  a 
practice  in  full  force  in  other  days.  One  counted  but 
little  on  a  parole  given,  and  hostages  were  taken  who 
would  be  responsible  for  the  execution  of  engage- 
ments. In  1870  the  Germans  revived  this  practice, 
better  still,  they  took  hostages  by  way  of  reprisals 
(40  hostages  were  taken  at  Dijon  and  sent  to  Berlin 
because  the  French  government  did  not  wish  to  re- 
lease a  German  sea  captain  who  had  been  made  pris- 
oner). Certain  German  jurisconsults  were  unable  to 
conceal  their  reprobation  of  such  acts. 

Effects  of  War  on  Property 

The  occupant  is  in  contact  with  the  property  of 
the  state  and  with  that  of  private  persons  of  the  ad- 
verse belligerent. 


196  TENTH    LECTURE 

If,  in  the  days  of  the  Romans,  the  property  of 
the  enemy  was  res  nullius  and  at  the  mercy  of  the 
adversary,  a  conquest  being  the  most  legitimate 
method  of  acquisition,  things  are  very  different  today. 

Just  as  modern  ideas  do  not  admit  that  one  should 
do  harm  for  the  sake  of  harm,  so  they  demand  that 
in  principle  property  be  respected.  In  Article  23g 
and  25  of  the  rules  of  The  Hague,  allusion  is  made 
to  the  methods  of  destruction  which  are  only  justified 
if  the  necessities  of  war  imperiously  demand  them. 
It  seems,  however,  that  one  should  establish  a  distinc- 
tion between  the  property  of  the  state  and  that  of 
private  persons,  also  between  real  and  personal  prop- 
erty. 

Property  of  the  State 

Real  Property.— The  invader  occupies,  but 
does  not  acquire,  territory  so  long  as  there  has  been 
no  cession.  He  exercises  therein,  however,  a  consid- 
erable power  which  permits  him  to  destroy  everything 
which  may  imperil  his  security  or  interfere  with  his 
defense  (Art.  23g  of  The  Hague  rules).  He  may  in 
the  same  way,  utilize  existing  edifices  to  establish  his 
offices,  etc. ;  but  logically  he  may  not  make  material 
changes  in  the  buildings  other  than  those  necessary 
for  such  purposes. 

The  occupant  has  also  the  enjoyment  of  the  works 
of  the  state  (' 'exploitations")  which  may  produce  rev- 
enues for  him;  but  Article  55  of  The  Hague  rules  pre- 
scribes that  he  shall  administer  such  works  so  as  to 
protect  their  capital,  having  regard  to  the  rules  of 
usufruct.  The  rights  of  an  occupant  in  regard  to 
these  things  ceases,  at  the  same  time  as  does  the  oc- 
cupation, and  all  business  agreements  which  are  con- 
trary to  these  principles  become  abrogated  and  are 
without  value  from  that  moment. 


INTERNATIONAL    LAW  197 

In  1870  the  Germans  had  sold  from  the  French 
public  domain  near  Nancy,  15,000  oak  trees  to  a  bank- 
er at  a  ridiculously  low  price.  The  sale  clearly  went 
beyond  the  limits  of  honest  administration  and  cut 
into  the  principal.  The  execution  of  the  contract 
was  following  its  course  and  already  about  9,000 
trees  had  been  cut  down,  when  the  occupation  ceased. 
The  German  who  had  bought  the  trees,  not  daring  to 
continue  to  exploit  them,  disposed  of  his  bargain 
which,  from  hand  to  hand,  reached  those  of  a  French- 
man who  refused  to  pay  the  purchase  price  and  asked 
the  court  of  Nancy  to  pronounce  an  abrogation,  which 
was  done  by  a  decree  of  August  3,  1872,  for  the  rea- 
son that  the  sale  related  to  the  property  of  a  third 
party.  The  German  who  had  lost  turned  to  his  gov- 
ernment and  asked  it  to  intervene.  The  German  gov- 
ernment did  not  do  so,  thus  approving  the  action  of 
the  French  tribunal,  which  considered  the  transaction 
as  having  gone  beyond  the  limits  of  proper  adminis- 
tration. 

Policy  of  the  Occupant  in  Occupied  Terri- 
tory. —The  occupant  should  cause  the  social  life  of 
the  country  to  be  taken  up;  he  should  reopen  the 
schools,  the  places  of  worship,  should  assure  the  ser- 
vices of  transportation,  of  the  mails,  etc.  The  occu- 
pant should  also  remember  that  municipal  authority, 
which  is  about  the  only  old  authority  that  will  remain, 
is  a  force  which  he  must  not  neglect.  The  question 
is  a  most  delicate  one  so  far  as  concerns  the  view 
which  may  be  taken  by  the  municipal  authorities  in 
regard  to  the  occupant.  To  what  extent  may  the 
municipal  authorities  serve  as  an  intermediary  be- 
tween the  occupant  and  the  inhabitants?  Should  they 
remain  or  resign?  These  are  questions  of  fact  which 
cannot  be  determined  except  by  the  application  of  a 
general  principle:  the  municipal  authorities  should 
serve  the  occupant  against  their  country  in  nothing, 


198  TENTH    LECTURE 

and  yet  serve,  as  much  as  possible,  their  own  cit- 
izens. 

Personal  Property.— In  regard  to  personal 
property  the  rule  is  not  so  simple  as  in  regard  to 
realty,  and  there  are  distinctions  to  be  made  accord- 
ing to  whether  the  personal  property  may  or  may  not 
serve  in  the  operations  of  war.  This  principle  is  es- 
tablished by  Article  53  of  the  rules  of  The  Hague  of 
1907,  paragraph  1: 

"An  army  of  occupation  can  only  take  possession 
of  cash,  funds,  and  realizable  securities  which  are 
strictly  the  property  of  the  State,  depots  of  arms, 
means  of  transport,  stores  and  supplies,  and,  gener- 
ally, all  movable  property  belonging  to  the  State 
which  may  be  used  for  military  operations/ ' 

It  has  therefore  been  recognized  that  all  objects 
of  personality  belonging  to  the  State  which  may  be 
useful  in  the  operations  of  war  are  a  good  prize;  the 
end  of  the  paragraph  gives  the  general  idea.  The 
enumeration  which  precedes  it  is  merely  an  applica- 
tion thereof. 

In  this  article  the  expression  "an  army  of  occu- 
pation" is  taken  in  a  broad  sense;  we  might  reflect 
upon  this  Sec.  Ill  of  the  rules  for  having  used  the 
word  "occupied"  in  various  senses;  sometimes  the 
word  "occupation"  is  employed  in  opposition  to  the 
word  "invasion."  For  example,  when  it  has  refer- 
ence to  legislation  which  should  be  respected,  unless 
there  be  an  absolute  bar  thereto  (Art.  43),  and  in  re- 
gard to  the  taxes,  which  may  be  raised  (Art.  48). 
Here  (Art.  53),  on  the  contrary,  the  word  occupation 
has  a  broad  meaning;  if  by  a  simple  invasion,  or  even 
by  a  cavalry  raid,  one  succeeds  in  putting  ones  hands 
on  stores  or  on  a  public  treasure,  these  objects  are  all 
good  prize  without  there  having  to  be,  properly  speak- 
ing, an  occupation.  One  must  include  as  objects  of 
good  prize,  stores,  munitions  of  war,  and  also  the 


INTERNATIONAL    LAW  199 

money  which  is  found  in  the  public  coffers;  this  is 
why  Article  53  speaks  of  "cash."  From  this  point 
of  view  there  is  an  interest  in  distinguishing  public 
coffers  from  private  ones. 

During  the  war  of  1870  the  Germans  found  in 
several  of  the  cities  which  they  occupied,  branches  of 
the  Bank  of  France  containing  large  sums  of  money. 
At  first  the  occupants  were  in  doubt  as  to  their 
rights,  believing  the  bank  to  be  a  government  insti- 
tution. When  it  was  shown  that  this  was  not  so, 
even  though  the  bank  had  a  close  relation  to  the  gov- 
ernment, the  funds  were  respected. 

The  coffers  of  communes*  or  those  of  private  so- 
cieties or  of  public  societies,  should  be  respected.  All 
that  can  be  done  is  to  place  them  under  sequestration, 
and  this  is  perfectly  legitimate  in  order  to  prevent 
such  funds  from  being  loaned  to  the  enemy  state. 

The  principle  in  relation  to  this  was  very  well 
shown  in  1874  at  the  Brussels  Conference  by  the  lead- 
ing German  delegate,  who  drew  a  distinction  in  the 
funds  which  might  be  found  in  the  coffers  of  the 
state,  between  those  which  belonged  to  the  state,  and 
those  which  belonged  to  communes  or  societies,  or  to 
private  persons.  In  regard  to  all  these  funds  there 
is  a  presumption  that  they  belong  to  the  state  and 
they  are  a  good  capture,  but  if  later  proof  can  be 
made  that  a  part  of  the  funds  did  not  properly  belong 
to  the  state,  this  part  should  be  returned  in  virtue  of 
the  principle  of  the  respect  due  to  private  property. 

In  Article  53  "realizable  securities  which  are 
strictly  the  property  of  the  state* '  are  mentioned. 
This  relates  to  the  case  where  the  state  whose  terri- 
tory has  been  invaded  should  be  the  creditor  of  col- 
lectible debts.     Then  the  belligerent  who  invades  the 

♦Communes  are  political  subdivisions  somewhat  similar 
to  our  townships.  As  used  in  these  lectures,  the  term  includes 
all  forms  of  municipal  units. 


200  TENTH    LECTURE 

territory  has  the  right  to  cause  himself  to  be  paid  in 
place  of  the  state  which  is  the  true  creditor,  but 
from  the  moment  that  this  right  is  recognized  in  the 
invader  it  must  necessarily  follow  that  the  debtor 
who  has  paid  his  debt  to  the  invader  is  freed  from 
further  payment  to  the  legal  sovereign  whom  he  had 
originally  engaged  himself  to  pay;  it  would  clearly 
be  unfair  that  he  should  be  obliged  to  pay  a  second 
time  to  the  legal  sovereign  what  he  has  already  paid 
to  the  invader  under  the  influence  of  constraint. 
This  is  a  situation  identical  with  that  which  is  pre- 
sented in  regard  to  the  payment  of  taxes. 

We  must  not  confound  these  rules  of  international 
law  with  the  rules  that  may  be  followed  in  the  case 
of  domestic  disturbances.  Let  us  suppose  that  an 
insurrection  has  assumed  proportions  which  render 
the  legal  sovereign  temporarily  powerless  in  the 
locality  affected,  and  that  the  insurgents  within  that 
locality  require  a  government  depositary  to  turn  over 
to  them  certain  public  funds.  It  is  not  at  all  certain 
that  a  receipt  taken  by  the  depository  would  serve 
to  satisfy  the  legal  government  for  the  loss  of  the 
funds,  after  order  shall  have  been  restored.  The  fol- 
lowing may  serve  as  an  example: 

During  the  Commune,  *  the  Bank  of  France  was 
forced  to  pay  to  the  insurgent  government  sums 
amounting  to  eight  or  nine  million  francs,  and  it  was 
thanks  to  the  protection  afforded  by  a  member  of 
that  government  who  had  been  charged  with  guarding 
the  bank  (Beslay),  and  who  acted  in  this  case  with  great 
honesty,  that  the  requirements  did  not  rise  to  a  much 
greater  amount.  After  the  troubles,  the  Bank  of 
France  asked  of  the  state  a  restitution  of  these  sums, 
but  the  bank  finally  had  to  bear  the  loss  of  that  which 
it  had  been  obliged  to  pay. 

*The  name  given  to  an  insurrection  which  broke  out  in 
the  city  of  Paris  in  March,  1871. 


INTERNATIONAL    LAW  201 

From  what  has  been  shown  it  is  apparent  that 
today  the  law  has  much  more  respect  for  enemy 
property  than  had  the  law  at  the  opening  of  the  XIX 
Century.  Then  almost  all  property  was  a  good  prize; 
today  practically  everything  which  does  not  come 
within  the  general  idea  of  being  useful  for  war  pur- 
poses, is  to  be  respected. 

This  view  receives  a  very  important  application 
in  that  which  concerns  works  of  art,  pictures,  statues, 
books  and  manuscripts;  respect  for  these  objects  re- 
sults not  only  from  their  exclusion  from  the  enumera- 
tion of  Article  53,  but  also  and  more  particularly 
from  what  is  said  in  Article  56. 

"The  property  of  municipalities,  that  of  institu- 
tions dedicated  to  religion,  charity  and  education,  the 
arts  and  sciences,  even  when  State  property,  shall  be 
treated  as  private  property. 

"All  seizure  of,  destruction  or  willful  damage  done 
to  institutions  of  this  character,  historic  monuments, 
works  of  art  and  science,  is  forbidden,  and  should  be 
made  the  subject  of  legal  proceedings/ ' 

From  the  combination  of  Articles  53  and  55, 
there  flows  again  very  clearly  the  idea,  which  may 
be  called  modern,  of  the  respect  due  to  all  personal 
property  belonging  to  the  state  which  is  not  sus- 
ceptible of  use  in  time  of  war. 

It  is  certain  that  this  idea  has  not  always  existed 
and  that  during  the  wars  of  the  Revolution  and  of 
the  Empire,  in  particular,  there  were  acts  contrary 
thereto.  But  there  was  also,  in  relation  to  this,  much 
confusion;  Napoleon  I  had  the  idea  of  making  Paris 
the  great  intellectual  center  of  the  world,  and  he 
tried  to  assemble  there  works  of  art  taken  from  all 
the  museums  of  Europe,  but  the  methods  employed 
to  realize  this  concentration  were  not  always  the 
same:  often,  undoubtedly,  there  was  the  brutal  right 
of  conquest,   and  commissioners  were  charged  with 


202  TENTH    LECTURE 

the'duty  of  determining  what  objects  it  would  be  well 
to  abstract  from  the  museums  and  public  monuments 
of  an  invaded  country,  and  send  to  Paris;  but  it  also 
frequently  happened  that  works  of  art  were  delivered 
to  the  French  authorities  by  virtue  of  treaties;  it  is 
thus  that  the  Pope,  by  the  treaty  of  Tolentino,  ceded 
to  France,  as  an  indemnity,  certain  works  of  art. 
This  convention  is  quite  as  regular  as  would  be  one 
providing  for  an  indemnity  in  money  or  a  cession  of 
territory,  and  often  the  conquered  power  will  volun- 
tarily cede  works  of  art  rather  than  pay  a  war  in- 
demnity, because  to  do  so  lays  a  less  charge  on  the 
people. 

When  the  coalition  triumphed  over  France  in  1814, 
there  was  nothing  said  in  regard  to  these  objects  of 
art  in  the  treaties  which  were  then  concluded,  and 
Louis  XVIII  could  say,  on  June  4,  1814,  in  a  speech 
to  the  Chamber  of  Deputies,  that  the  works  of  art 
acquired  during  the  wars  of  the  Empire  belonged  to 
France  by  a  more  stable  right  than  that  which  re- 
sulted from  the  right  of  war;  however,  it  was  decided 
to  return  to  their  owners  certain  objects  of  art,  and 
several  grandees  of  Spain,  who  had  been  the  victims 
of  imposition,  reentered  into  possession  of  their  works 
of  art.  But  after  the  "Cent  jours"  a  species  of  ex- 
asperation set  in,  both  from  the  interior  and  the  ex- 
terior, and  the  methods  of  the  second  Restoration 
were  entirely  different;  in  the  suspension  of  arms 
signed  at  St.  Cloud  on  July  3,  1815,  it  was  recognized 
that  France  had  to  submit  to  the  return  of  the  greater 
number  of  the  objects  of  art  brought  to  Paris,  with- 
out a  distinction  being  drawn  between  those  which 
had  been  brought  there  as  the  results  of  treaties,  and 
those  which  had  been  taken  by  force;  it  was  the  King 
of  Holland  who  first  proposed  to  Wellington  that  he 
cause  this  right  to  be  recognized  and  at  the  instance 
of  the  English  government,  which  was  the  most  dis- 


INTERNATIONAL    LAW  203 

interested  in  the  matter,  commissioners  of  England 
and  Holland,  and  those  of  a  certain  number  of  other 
states,  came  and  removed  from  the  French  museums 
the  works  of  art  which  had  been  placed  in  them; 
there  were  returned  thus  more  than  1500  manuscripts, 
2065  pictures,  287  bronzes,  1199  enamels,  etc. 

During  the  course  of  the  XIX  Century,  at  least 
in  European  wars,  these  practices  had  been  aban- 
doned; but  in  the  extra-European  wars  it  would  seem 
that  the  same  rule  has  not  always  been  observed, 
even  when  Europeans  have  figured  as  belligerents. 
It  is  thus  that  in  1860  there  took  place  the  methodical 
pillage  of  the  summer  palace  of  the  Emperor  of  China; 
one  saw  there  official  commissioners  determining 
what  should  be  offered  to  Queen  Victoria  and  to  the 
Emperor  Napoleon  III,  and  what  should  be  sold  for 
the  benefit  of  the  troops,  and  one  may  see  at  Fon- 
tainebleau,  in  the  Chinese  Museum,  a  necklace  which 
was  then  offered  to  the  Empress  Eugenie. 

In  the  same  way,  in  1879-80,  in  the  war  of  the 
Pacific,  between  Peru  and  Bolivia  on  one  side,  and 
Chile  on  the  other,  the  museums  and  libraries  of 
Lima  were  largely  placed  under  contribution  by  the 
Chileans,  and  a  great  number  of  statues  and  objects 
of  art  were  landed  at  Valparaiso. 

Today  ideas  on  this  point  have  changed,  and 
the  German  manual,  published  by  the  Great  General 
Staff,  recognizes  this  fact  in  a  very  peculiar  way,  it 
may  be  said,  since,  after  having  spoken  of  the  possi- 
ble appropriation  of  objects  which  may  serve  in  war, 
the  manual  recommends  that  the  property  of  trades 
schools  and  other  public  establishments  be  respected, 
and  adds  that  the  ancient  custom  of  appropriating  to 
oneself  such  property  seems  to  be  disappearing. 
The  articles  of  the  German  and  French  press  in 
regard  to  objects  of  art  carried  away  during  the 
Chinese  campaign  show  how  much  public  opinion  has 


204  TENTH    LECTURE 

become  ticklish  and  even  sentimental  on  this  point. 

So  far  as  regards  the  sanitary  materiel,  the  situa- 
tion is  regulated  by  Article  4  of  the  Geneva  Con- 
vention of  1864. 

"As  the  equipment  of  military  hospitals  remains 
subject  to  the  laws  of  war,  persons  attached  to  such 
hospitals  cannot,  in  withdrawing,  carry  away  any 
articles  but  such  as  their  private  property." 

And  by  Article  15  of  the  convention  as  revised  in 
1906: 

"Buildings  and  materiel  pertaining  to  fixed  es- 
tablishments shall  remain  subject  to  the  laws  of  war, 
but  cannot  be  diverted  from  their  use  so  long  as  they 
are  necessary  for  the  sick  and  wounded." 

This  materiel  is,  therefore,  a  good  prize,  but  it 
has  a  particular  objective  and  cannot  be  deturned 
from  that  objective.  In  regard  to  the  materiel  be- 
longing to  aid  societies,  Article  16  specifies  that  it 
must  be  "regarded  as  private  property  and  as  such 
will  be  respected  under  all  circumstances. "  We  have 
reference  of  course  here  to  the  materiel  of  fixed 
establishments,  as  we  have  already  considered  the 
case  of  mobile  formations. 

From  all  this  it  follows  that  today,  in  war  on 
land,  there  are  objects  of  personality  belonging  to 
the  enemy  state  which  are  a  good  capture.  These 
objects,  such  as  stores,  provisions,  funds,  may  have 
a  certain  importance;  the  question  then  presents 
itself  of  knowing  to  whom  these  prizes  belong. 

War  being  a  relation  of  state  to  state,  the  prizes 
naturally  belong  to  the  state  to  which  the  troops 
pertain  that  made  the  capture.  But  the  state  may 
decide  the  use  to  which  it  will  put  these  prizes;  this 
is  a  question  entirely  of  domestic  order  and  no  longer 
a  question  of  international  regulation. 

From  the  standpoint  of  the  United  States  but 
little  need  be  said  in  regard  to  this  as  our  regulations 


INTERNATIONAL    LAW  205 

consider  all  property  captured  in  which  ownership 
may  be  taken,  as  the  property  of  the  government. 
No  recognition  is  given  to  the  individual  who  may 
first  secure  the  prize.  Any  soldier  who  captures 
property,  which  may  properly  be  seized,  has  for  his 
duty  to  turn  it  in,  and  neither  he  nor  the  organization 
to  which  he  belongs  may  benefit  therefrom.  With 
foreign  states  the  rule  in  many  cases  is  different  and 
in  view  of  the  questions  in  regard  to  "loot  sales"  and 
kindred  methods  of  disposing  of  captured  movables 
which  were  presented  to  our  army  by  the  actions  of 
other  contingents  during  the  recent  Pekin  expedition, 
it  may  be  well  to  consider  the  views  held  by  certain 
foreign  armies  in  regard  to  the  disposition  of  prizes 
taken  by  troops  on  land.  In  the  next  lecture  we  will 
therefore  consider  this  question. 

It  must  be  observed  again  that  whatever  is  a 
lawful  prize  in  war  on  land  is  the  prize  of  the  govern- 
ment whose  army  has  taken  it  and  it  is  for  that 
government  to  dispose  of  it  as  it  sees  fit. 

It  may  be  well  here  to  draw  the  distinction  be- 
tween ' '  booty ' '  and  ' '  pillage. ' '  The  term  ' '  booty ' ' 
applies  to  things  which  are  gathered  by  a  collective 
movement,  whereas  "pillage"  is  the  result  of  in- 
dividual acts. 


ELEVENTH    LECTURE 


^^\HE  French  regulations  embodied,  until  1901,  a 
^j/  principle  which  had  been  admitted  for  several 
centuries  and  which  is  set  forth  as  Article  109 
of  the  Regulations  of  1895;  it  reads  as  follows: 

"All  prizes  made  by  detachments  belong  to  them, 
when  it  is  recognized  that  they  are  only  made  up  of 
objects  taken  from  the  enemy/ ' 

The  regulations  then  determine  how  the  prizes 
are  to  be  valued  and  sold  by  the  subintendant  of 
headquarters,  and  the  number  of  parts  to  be  allotted 
to  each  member  of  the  detachment  according  to  his 
grade.  This  disposition  of  prizes  will  be  found  in  the 
regulations  running  back  to  the  beginning  of  the 
XVIII  century.  If  in  principle  prizes  were  a  benefit 
to  the  State,  it  was  thought  that  they  should  be  made 
of  particular  advantage  to  the  detachments  which 
had  made  them,  thus  encouraging,  in  that  sense,  a 
war  of  partisans. 

At  the  time  of  the  expedition  to  China  in  1900, 
there  were,  on  the  part  of  the  anti-militarists,  very 
sharp  attacks  against  the  prizes  which  were  made. 
The  Germans  and  French  had  seized  certain  articles 
found  in  Pekin— early  bronzes  going  back  to  the  time 
of  Louis  XIV -of  some  artistic  value.  These  articles 
were  taken  and  sent  to  Europe.  But  in  France  a 
movement  of  public  opinion  became  evident  and  the 
articles  were  returned  to  China;  this  action  was  en- 
tirely correct  from  every  point  of  view;  if  we  suppose 
that  the  articles  were  a  good  prize— a  point  which  is 
disputable- they  belonged  to  the  state;  the  state  re- 
turned them;  it  had  the  strict  right  to  do  so. 


208 


Eleventh  lecture 


But  the  situation  was  different  in  regard  to  the 
prizes  which  were  made  and  divided  under  the  pro- 
visions of  Article  109  of  the  regulations;  there  had 
been  a  division;  payments  had  been  made  to  those 
interested;  yet  the  officers  and  men  were  forced  to 
restore  the  amounts  which  they  had  received  or  the 
cheques  which  represented  these  amounts,  an  action, 
which,  in  the  eyes  of  public  opinion,  placed  in  the 
light  of  reprehensible  pillage  that  which  had  been 
done  in  conformity  with  existing  regulations.  This 
was  very  objectionable,  and  it  may  be  said  that  on 
this  occasion  the  army  was  defended  with  an  extreme 
lack  of  vigor.  However  this  may  be,  the  decree  of 
June  26,  1906,  has  decided  that  Article  109  is  abro- 
gated; this  is  perfectly  proper,  and  the  present  rule 
of  action  which  awards  to  the  state  alone  the  benefit 
of  prizes  is  more  in  accord  with  modern  ideas. 

If  the  suppression  of  Article  109  of  the  French 
regulations  must  be  approved  as  being  in  conformity 
with  the  idea  that  war  should  never  be  a  question 
of  lucre,  it  must  be  recognized  that  there  is  an  inco- 
herence in  the  present  general  situation,  and  that  if 
logic  is  to  rule  there  is  another  thing  to  be  done. 

In  maritime  war  there  are  still  profits  which 
may  be  made  by  the  military;  it  is  accepted  that 
private  vessels  of  the  enemy  nation  are  a  good  prize 
and  that  war  vessels  of  a  belligerent  may  capture 
commercial  vessels  flying  the  enemy's  flag.  It  is 
also  admitted  that  what  is  known  as  prize  money 
accrues  to  the  crew  of  the  capturing  vessel;  there  is 
here,  therefore,  a  pure  and  simple  profit  which  is 
made  by  the  officers  and  sailors— no  longer  a  capture 
of  property  belonging  to  the  enemy  state,  but  a  prize 
taken  from  enemy  private  property.  The  danger 
incurred  in  such  a  capture  is  not  greater  than  in  the 
case  of  a  land  capture;  it  is  even  less;  it  is  thus 


INTERNATIONAL    LAW  209 

illogical  to  maintain  by  international  law  this  method 
of  action. 

There  are  at  present  but  two  navies  in  the  world 
in  which  prize  money  is  not  recognized;  first,  that 
of  Japan  in  which  it  has  never  been  recognized; 
second,  that  of  the  United  States,  which  for  a  long 
time  recognized  it  as  do  the  navies  of  other  nations. 
An  act  of  1899  suppressed  it  for  our  navy  and  this 
date  is  held  by  some  foreign  critics  to  be  rather 
significant  for  the  following  alleged  reason:  it  was  a 
date  following  the  Spanish-American  war,  and  the 
law  was  enacted  because  the  American  government 
had  learned  by  experience  that  there  were  inconven- 
iences in  relation  to  naval  officers  having  a  personal 
interest  in  operations  with  which  they  might  be 
charged.  A  prize  may  involve  not  only  enemy  com- 
mercial vessels  but  neutral  commercial  vessels  against 
which  a  violation  of  neutrality  is  charged,  and  then — 
the  feebleness  of  human  nature  helping— one  may 
be  led  to  believe,  with  too  much  ease,  that  a  vessel 
violates  neutrality,  when  one  knows  that  one  may 
profit  thereby.  This  happened  in  regard  to  a  French 
packet  which  was  seized  by  a  United  States  cruiser 
on  the  pretext  that  it  had  tried  to  force  a  blockade. 

The  claim  was  unjust  and  the  judgment  of  the 
lower  court  declared  the  capture  unjustified;  it  was 
necessary,  however,  to  appeal  the  case,  and  finally 
the  vessel  was  released  but  without  indemnity;  as 
surprise  was  expressed  that  an  appeal  was  taken 
from  a  decision  favorable  to  the  alleged  prize,  the 
United  States  government  explained  that  there  had 
been  pressure  on  the  part  of  the  Navy;  the  crew  of 
the  American  cruiser  protested  energetically  as  they 
watched  the  disappearance  of  the  windfall  on  which 
they  had  counted. 

The  foregoing  is  merely  illustrative  of  views 
held  in  Europe  in  regard  to  the  subject  matter.     It  is 


210  ELEVENTH    LECTURE 

perfectly  well  established,  that  the  United  States 
has  long  advocated  the  policy  of  free  private  goods 
at  sea.  As  far  back  as  the  Declaration  of  Paris, 
when  privateering  was  abolished,  by  the  great  powers 
of  Europe,  the  United  States,  while  it  did  not  feel 
that  it  could  afford  to  forego  the  advantage  of  pri- 
vateering so  long  as  the  practice  was  of  any  use,  was 
willing  to  agree  to  the  doctrine  that  all  private 
property,  not  contraband,  should  be  free  from  cap- 
ture. This  as  we  have  already  seen  would  have 
stopped  privateering  from  the  lack  of  incentive. 
This  view  would  indicate  that  in  the  matter  of  prize 
money,  the  United  States  has  long  been  prepared  to 
take  its  present  stand. 

There  is  no  sound  reason  why  two  rules  should 
obtain  and  that  private  property  on  land  should  be 
respected  while  private  property  at  sea  may  be  cap- 
tured. The  right  of  capture  should  in  all  cases  be 
considered  as  an  act  between  state  and  state  and 
all  idea  of  lucre  or  of  speculation  should  disappear. 

Private  Property 

If  the  new  ideas  of  war  have  brought  about  a 
change  in  the  view  to  be  taken  in  regard  to  the 
property  of  the  state,  and  determine  that  all  property 
of  the  state,  even  though  it  be  personal  property,  is 
not  a  good  prize,  still  more  strongly  must  these  ideas 
have  influenced  the  principles  applied  to  private 
property.  Here,  the  opinion  which  has  finally  won 
out  is  that  in  war  on  land,  private  property  should  be 
respected. 

As  a  matter  of  fact,  this  rule  would  be  ridiculous 
if  it  were  taken  by  the  letter;  it  is  certain  that  even 
the  smallest  operations  of  war  carry  with  them  con- 
sequences often  disastrous  to  private  property;  a 
fight,  even  a  march,  will  always  bring  destruction 


INTERNATIONAL    LAW  211 

and  even  devastation  by  the  force  of  circumstances. 
The  rule  means  simply  two  things: 

(1)  That  international  law  proscribes  unneces- 
sary destruction;  and  that  one  must  not  destroy  for 
the  sole  purpose  of  destroying;  this  is  stated  in 
Article  23-g  of  The  Hague  rules,  which  holds  that 
it  is  forbidden: 

1  'To  destroy  or  seize  the  enemy's  property,  un- 
less such  destruction  or  seizure  be  imperatively  de- 
manded by  the  necessities  of  war." 

(2)  That  international  law  proscribes  what  was 
known  in  other  days  as  booty  and  pillage.  Article  46, 
in  its  second  paragraph,  states  that:  "private  prop- 
erty cannot  be  confiscated,"  and  Article  28  states 
that:  "the  pillage  of  a  town  or  place,  even  when 
taken  by  assault,  is  prohibited." 

It  is  this  inhibition  against  appropriating,  purely 
and  simply,  private  property,  which  gives  so  much 
importance  to  the  distinction  which  we  have  drawn 
between  public  and  private  funds.  A  consequence 
of  the  principle  is  that  if  we  suppose  one  of  the  bellig- 
erent states  to  be  the  debtor  of  the  subjects  of  the 
adversary,  it  may  not  avoid  meeting  its  engagements; 
this  question  presents  itself  in  regard  to  public  bonds 
standing  in  the  name  of  an  enemy  subject;  the  non- 
payment of  interest  would  be  a  direct  blow  at  private 
property.  And  here  the  reputation  of  the  belligerent 
guarantees  his  obligation,  since  he  has  every  incen- 
tive to  safeguard  his  own  credit. 

It  is  in  England  that  there  has  been  preserved  — 
at  least  in  the  form  in  which  it  is  expressed  in  the 
books— the  absolute  holding  of  the  ancient  law  on  this 
point;  English  authors  still  commonly  maintain  today 
that  as  the  result  of  a  war  there  are  no  longer  any 
ties  of  law  between  a  state  and  the  subjects  of  the 
adversary,  thus  it  has  been  said  that  an  enemy  subject 
may  not  move  in  a  matter  of  justice,  before  the  tri- 


212  ELEVENTH    LECTURE 

bunals  of  the  adversary,  that  his  rights  are  at  least 
suspended.  This  might  have  been  applicable  in  other 
days,  when  the  relations  between  different  countries 
were  not  very  close;  but  today,  by  reason  of  the  inter- 
weaving of  interests,  it  has  become  impossible;  if  we 
should  suppose,  for  instance,  a  war  between  England 
and  Germany — it  is  clear  that  a  state  of  war  may  not 
serve,  in  itself,  to  prevent  the  large  number  of  Ger- 
man subjects  who  are  creditors  of  English  subjects 
from  appearing  before  the  English  tribunals,  since 
this  would  be  equivalent  to  taking  from  them  the 
right  to  cause  themselves  to  be  paid. 

At  The  Hague  conference  of  1907,  the  German 
delegate  proposed  an  amendment  in  regard  to  this, 
which  was  accepted  without  difficulty  and  has  been 
incorporated  into  Article  23  as  Sec.  h,  which  forbids: 

"To  declare  abolished,  suspended,  or  inadmis- 
sible in  a  court  of  law,  the  rights  and  actions  of  the 
nationals  of  the  hostile  party." 

This  has  reference  to  the  English  doctrine  we 
have  just  mentioned,  and  is  entirely  justified;  such 
questions,  when  they  can  be  discussed,  are  settled 
without  difficulty.  But  the  place  in  which  we  find 
this  amendment  is  rather  odd;  it  is  contained  in  an 
article  which  has  for  its  object  to  indicate  to  the  dif- 
ferent states  the  instructions  which  they  are  to  give 
to  their  troops;  and  the  paragraph  has  certainly  noth- 
ing to  do  with  the  conduct  of  armies  in  campaign. 

It  results,  from  the  principle  of  the  respect  due 
to  private  property,  that  acts  of  pillage,  theft, 
marauding  done  by  soldiers  in  invaded  or  occupied 
territory,  are  acts  of  brigandage  which  are  covered 
by  a  number  of  laws,  and  that  these  laws  should  be 
applied  in  an  enemy  country  as  well  as  at  home. 

This  is  not  only  just,  but  also  useful,  and  the  in- 
terests of  the  inhabitants  of  the  invaded  country  co- 
incides here  with  those  of  the  invader.    On  the  one 


INTERNATIONAL    LAW  213 

hand,  the  interdiction  of  pillage  is  of  assistance  to  the 
discipline  and  order  of  the  army;  on  the  other,  if 
troops  give  way  to  pillage,  the  population  is  usually 
led  to  a  condition  of  exasperation,  and  the  security 
of  the  army  is  by  so  much  diminished.  It  may  be 
remembered,  in  regard  to  this,  that  Napoleon,  in 
criticizing  the  conduct  of  his  lieutenants  in  Spain, 
said  that  the  guerrillas  had  not  appeared  until  a  year 
after  his  departure,  and  then  thanks  to  the  pillage 
of  which  the  marshals  themselves  gave  the  example, 
and  he  rendered  honor  to  Suchet,  who,  by  giving  an 
example  of  severe  discipline,  was  never  the  aim  of 
guerrillas.  In  the  same  way  one  cause  of  the  loss  of 
the  battle  of  Rosbach  was  that  from  6,000  to  7,000 
soldiers  were  absent  at  the  time  of  the  fight,  because 
they  were  marauding. 

The  Germans,  while  recognizing  the  principle  of 
the  respect  for  private  property,  wished  to  have  it 
admitted  that  in  certain  cases  incidents  of  pillage  or 
of  destruction  might  explain,  or  even  justify,  them- 
selves. Notably,  in  regard  to  the  pillage  or  destruc- 
tion of  houses  "wildly  abandoned' '  by  their  owners; 
this  is  set  forth  in  the  manual  published  by  the  Ger- 
man Great  General  Staff;  under  this  theory,  owners 
who  abandon  their  houses  can  only  blame  themselves 
for  what  may  happen  in  their  absence. 

This  is  rather  severe,  because  it  may  happen  that 
that  which  is  called  an  abandoning  of  property,  can 
as  a  matter  of  fact  be  explained.  There  are  certain 
houses  which  are  only  inhabited  during  part  of  the 
year,  and  the  absence  of  the  owners  does  not  neces- 
sarily indicate  that  there  has  been  an  abandoning  by 
them. 

It  is  well  settled,  however,  that  an  owner  may  not 
escape  from  the  burthen  of  invasion  and  of  occupation 
by  merely  closing  his  house;  if  an  owner  is  to  have 
troops  quartered  upon  him  and  his  house  is  found 


214  ELEVENTH    LECTURE 

closed,  nothing  forbids  breaking  in  the  door  and  tak- 
ing the  quarters,  but  this  does  not  include  the  right 
to  carry  off  the  owner's  clock  when  the  troops  move- 

Certain  authors,  while  admitting  the  respect  due 
to  private  property,  make  an  exception  in  regard  to 
goods  which  belong  to  the  combatants  and  are  of  the 
opinion  that  one  may  properly  take  that  which  the 
combatants  have  on  their  persons,  and  that  it  is 
permissible  to  despoil  the  dead  and  wounded.  This 
is  evidently  contrary  to  modern  ideas.  In  the  rules 
of  The  Hague  they  did  not  take  the  trouble  to  speak 
for  combatants  in  general,  but  when  prisoners,  who 
are  special  combatants,  were  considered,  it  was  said, 
in  paragraph  3  of  Article  4: 

"All  their  personal  belongings,  except  arms, 
horses  and  military  papers,  remain  their  property/ ' 

If  that  which  is  found  upon  a  prisoner  must  be 
respected,  it  would  seem  that  one  should  hold  the 
same  view  in  regard  to  that  which  is  found  on  a 
corpse,  whether  it  be  one  who  has  died  on  the  field  of 
battle  or  one  who  has  died  in  the  hospital;  it  is 
exactly  the  same  idea,  and  this  is  set  forth  in  the 
second  paragraph  of  Article  14  of  The  Hague  rules. 

These  requirements  of  Articles  4  and  14  clearly 
establish  that  the  private  property,  and  any  objects 
belonging  to  the  combatants,  must  be  respected,  and 
as  a  matter  of  fact,  during  the  Russo-Japanese  war 
many  of  the  objects  found  by  the  Japanese  on  the 
bodies  of  dead  Russians,  particularly  pocket-books, 
were  transmitted  to  the  Russian  government  through 
the  medium  of  the  French  government. 

Differences  Between  War  at  Sea  and  War 
on  Land  in  Regard  to  Private  Property.— From 
what  precedes,  there  results  a  very  essential  differ- 
ence between  the  procedure  of  war  on  land  and  that 
of  war  at  sea;  private  property  in  war  on  land  may 
not  be  the  object  of  confiscation,  properly  speaking; 


INTERNATIONAL    LAW  215 

whereas,  in  war  at  sea  private  enemy  property  is  a 
good  prize;  one  may  confiscate  at  the  same  time  a 
vessel  flying  the  enemy  flag  and  its  cargo. 

Should  this  very  remarkable  difference  between 
war  on  land  and  war  at  sea  be  maintained?  The 
question  has  been  mooted  for  a  long  time,  and  it  was 
the  subject  of  a  very  extended  discussion  at  The 
Hague  in  1907. 

From  the  standpoint  of  general  principles,  it  has 
been  said  that  the  principle  of  respect  of  private 
property  being  a  result  of  the  modern  idea  of  war, 
there  is  no  reason  why  it  should  not  be  made  to  apply 
to  war  at  sea.  And  the  greater  number  of  authors, 
particularly  in  France,  are  of  the  opinion  that  there 
is  here  a  traditional  difference  which  is  without 
justification. 

However,  it  does  not  seem  that  the  thing  is  as 
simple  as  it  appears  at  first,  and  in  regard  to  the 
principle  there  may  appear  a  question. 

In  war  on  land,  a  respect  for  private  property 
is  imposed  by  the  interests  of  the  belligerent  as 
much  as  by  the  interest  of  the  inhabitants,  and  this 
respect  agrees  well  with  the  nature  of  the  coercion 
which  the  belligerent  exercises  over  his  adversary. 
This  coercion  results  from  the  very  occupation  of  the 
territory,  and  the  invader  or  occupant  may  reap  a 
certain  profit  from  the  occupation  or  from  the  in- 
vasion while  still  respecting  private  property;  he 
makes  notable  profits,  for  example,  by  means  of 
requisitions  and  impositions. 

In  war  at  sea  the  situation  is  entirely  different. 
Here  it  may  be  that  there  is  no  method  of  coercion 
against  ones  adversary  unless  one  ruins  his  com- 
merce, if,  for  example,  the  adversary  power  has  no 
vessels  of  war.  Besides,  the  seizure  of  commercial 
vessels  does  not  entail  the  deplorable  consequences 
for  industry,  which  pillage  in  war  on  land  entails;  in 


216  ELEVENTH    LECTURE 

the  latter  case,  certain  individual  disasters  result 
which  may  be  irreparable.  In  maritime  war,  on  the 
contrary,  commerce  is  undertaken  by  big  capital; 
vessels  as  a  rule  do  not  belong  to  private  individuals, 
who  would  be  ruined  if  their  vessels  were  captured; 
the  loss  is  spread  out  over  a  large  number  of  share- 
holders, and  it  is  a  loss  which  takes  on  a  national 
rather  than  an  individual  character. 

Thus,  there  is  here  a  method  of  constraint  di- 
rected at  the  enemy  state,  and  therefore  there  is  not, 
as  a  matter  of  fact,  a  similarity  between  maritime 
war  and  war  on  land;  for  this  reason  an  identical  rule 
is  not  required. 

There  are,  however,  countries  which  are  tradi- 
tionally in  favor  of  the  respect  of  private  property 
in  war  at  sea;  first,  the  small  states,  then  the  United 
States,  by  which  it  has  long  been  advocated;  in  1856 
the  United  States  had  subordinated  its  approval  of 
the  Declaration  of  Paris  to  the  acceptance  of  the 
doctrine  of  respect  for  private  property,  and  at  that 
time  the  rule  would  have  been  adopted  but  for  the 
opposition  of  England;  France  had  decided  to  accept 
it. 

Since  that  date  the  United  States  had  again 
taken  up  the  question,  and  submitted  it  to  The  Hague 
Conference  of  1907.  The  situation  by  then  had 
slightly  changed;  until  these  last  years,  to  uphold 
the  right  of  prize  was  a  real  dogma  in  England;  but 
for  some  time  an  evolution  has  been  in  progress  in 
that  country,  with  the  result  that  there  was  doubt  up 
to  the  last  moment  as  to  what  would  be  the  opinion 
of  England  on  the  question. 

The  reasons  for  this  change  of  attitude  are  the 
following:  England  is  the  country  which  has  the 
most  powerful  navy  in  the  world,  but  its  commercial 
navy  is  no  less  important,  and  it  is  for  England  a 
vital  question  to  see  that  its  commercial  relations 


INTERNATIONAL    LAW  217 

are  maintained  in  case  of  war.  England,  in  fact,  is 
not  sufficient  to  itself  in  regard  to  the  objects  of 
first  necessity,  and  imports  from  abroad  a  large 
proportion  of  its  food  supplies;  it  thus  has  the  fear 
that  notwithstanding  all  the  strength  of  its  war 
fleet,  an  adversary  might  do  it  a  great  deal  of  harm 
by  capturing  its  merchant  vessels. 

However,  at  The  Hague  the  English  government 
fought  the  American  proposition,  which,  nevertheless, 
was  carried  by  twenty-five  votes— a  heavy  majority. 
But  Holland,  France  and  Germany  having  voted 
against  it,  things  remained  as  they  were  and  the 
matter  was  not  pushed  further.  There  is,  neverthe- 
less, a  tendency,  which  has  become  accentuated,  to 
accept  the  principle;  it  was  not  sufficient  for  the 
powers  in  opposition  to  the  American  motion  to  say 
simply  that  they  asked  for  the  status  quo;  they  were 
required  to  justify  their  attitude.  In  so  far  as 
regards  France  in  particular,  the  existing  practice  is 
contrary  to  the  current  of  public  opinion,  which  may 
become  irresistible.  And  if  there  should  be  a  third 
Peace  Conference,  one  may  ask  if  the  American  pro- 
position will  not  be  carried  unanimously. 

To  render  the  present  system  entirely  equitable, 
it  would  be  necessary  to  make  two  reforms: 

(1)  Suppress  prize  money. 

(2)  Admit  that  the  losses,  resulting  from  the 
right  of  capture,  should  not  be  borne  by  the  indivi- 
dual, but  by  the  nation.  It  is,  in  fact,  as  the  result 
of  the  right  of  coercion  of  one  state  towards  another 
that  captures  are  made;  it  should  be  necessary,  there- 
fore, that  the  state  whose  ships  have  been  captured, 
indemnify  its  nationals.  However  this  may  be,  it 
would  seem  that  the  actual  positive  law  in  this 
matter  may  no  longer  be  successfully  maintained 
without  being  softened  or  qualified. 


218  ELEVENTH    LECTURE 

Requisitions  and  Contributions 

Requisitions  and  contributions  are  the  restric- 
tions placed  on  the  principle  of  respect  for  private 
property. 

Two  kinds  of  prestation  may  be  required:  in 
kind;  in  money. 

The  phraseology  in  this  matter  is  not  clearly 
defined.  There  are  two  things  to  be  distinguished: 
a  requisition,  a  contribution.  We  will  designate  by 
the  word  requisitions  prestations  in  kind,  while  we 
will  reserve  the  term  contributions  to  prestations  in 
money.  This  is,  it  may  be  said,  what  was  accepted 
at  The  Hague,  but  in  official  language  there  is  still 
sometimes  a  confusion  between  the  two  words. 

A  requisition  is  an  act  of  constraint  exercised 
upon  the  inhabitants  in  order  to  obtain  from  them 
either  personal  services  or  things  necessary  for  the 
needs  of  the  army. 

When  personal  services  are  requisitioned,  account 
must  be  taken  of  the  duty  which  the  requisitioned 
individual  has  towards  his  legal  sovereign,  and  he 
must  not  be  forced  to  commit  acts  of  treason  against 
his  country. 

In  particular,  in  regard  to  the  requisitioning  of 
guides,  Article  44  says: 

"A  belligerent  is  forbidden  to  force  the  inhabi- 
tants of  territory  occupied  by  it  to  furnish  informa- 
tion about  the  army  of  the  other  belligerent,  or  about 
its  means  of  defense.' ' 

It  results,  from  this  article  that  one  may  not 
force  an  inhabitant  to  serve  as  a  guide,  because  a 
guide  is  a  walking  source  of  information,  who  may 
as  such  cause  very  much  greater  harm  to  his  country 
than  if  he  fought  as  a  soldier  in  the  ranks  of  the 
enemy  army. 

Certain  powers,  however,  registered  reservations 
(Germany,  Austria,  Russia,  Japan,  Montenegro,  Bui- 


INTERNATIONAL    LAW  219 

garia  and  Roumania) ,  declaring  it  their  wish  not  to 
renounce  the  right  to  constrain  the  inhabitants  to 
serve  as  guides.  Naturally,  if  they  are  not  bound  to 
us,  we  are  not  bound  to  them.  The  clause  does  not 
exist  in  our  mutual  relations. 

Requisition  of  Things. -As  has  already  been 
stated,  the  requisition  of  things  constitutes  an  attack 
on  the  respect  for  private  property.  It  has  even  been 
said  that  in  fact  requisitioning  is  organized  pillage. 
Without  doubt  certain  abuses  carry  with  them  a  lack 
of  recognition  of  the  respect  for  private  property, 
but  notwithstanding  this,  the  present  practice  is  bet- 
ter than  the  ancient  system  of  pillage,  because  order 
is  always  better  than  disorder. 

Requisitions  are  exercised  either  in  national  or  in 
enemy  territory. 

In  national  teritory  they  are  exercised  by  virtue 
of  the  sovereignty  of  the  state;  even  in  time  of  peace 
they  might  be  necessary  in  the  case  of  the  assem- 
blage of  troops.  A  requisition  always  carries  with  it 
the  right  to  an  indemnity.  Even  where  the  right  of 
requisition  is  a  domestic  right,  it  is  applicable  to 
strangers  who  reside  within  the  territory  covered, 
who  may  not  even  object  to  having  troops  billeted 
upon  them.  The  right  to  billet  troops  is  based  on  the 
right  of  requisition.  In  regard  to  this,  however,  in 
the  United  States,  we  have  the  Third  amendment  of 
the  Constitution,  which  reads  as  follows: 

"No  soldier  shall,  in  time  of  peace,  be  quartered 
in  any  home,  without  the  consent  of  the  owner,  nor 
in  time  of  war,  but  in  a  manner  to  be  prescribed  by 
law." 

It  is  also  to  be  remembered  that  the  Fifth  amend- 
ment closes  as  follows: 

"Nor  shall  private  property  be  taken  for  public 
use  without  just  compensation." 


220  ELEVENTH    LECTURE 

In  enemy  territory  requisition  must  rest  on  differ- 
ent principles.  It  has  been  said  that  there  could 
not  be  a  right  of  requisition  in  enemy  territory;  yet 
the  army  is  obliged  to  nourish  as  well  as  to  protect 
itself,  and  its  right  of  requisition  is  generally  ad- 
mitted and  recognized.  This  right  may  be  applied 
as  well  to  the  case  of  invasion  as  to  that  of  occupa- 
tion. It  is  thus  that  we  must  understand  the  word 
occupation  in  Article  52  of  The  Hague  rules.  It  is 
certain  that  requisitions  are  more  likely  to  be  neces- 
sary in  an  invaded  than  in  an  occupied  country,  since 
in  the  latter  case,  the  service  of  supply  works  with 
greater  ease. 

Limits  to  the  Right  of  Requisition.  -May  one 
bring  restrictions  to  bear  on  the  right  of  requisition 
in  enemy  territory?  This  was  very  much  discussed 
at  the  Brussels  conference  of  1874  and  at  The  Hague 
in  1899.  In  1874  two  opposing  systems  were  brought 
face  to  face. 

1.  A  requisition  is  exercised  by  virtue  of  actual 
sovereignty,  which  belongs  to  the  occupant  and  which 
gives  him  the  right  to  collect  the  taxes  imposed  by 
the  legal  sovereign;  but  the  occupant  may  insist  upon 
this  right  only  within  the  measure  which  the  legal 
sovereign  himself  would  require.  The  objection  to 
this  system  is  that  the  enemy  is  thrown  back  to  the 
rules  of  his  adversary,  with  which  he  may  not  be 
acquainted  or  which  may  be  defective. 

2.  The  occupant  will  exercise  the  right  of  re- 
quisition in  enemy  country  as  he  would  exercise  it  at 
home.  This  is  a  good  system,  since  the  army  will 
know  the  rules  it  is  to  apply;  and  besides,  recrimina- 
tion will  be  obviated,  because  there  is  no  reason  for 
not  applying  to  the  enemy  that  which  might  be  ap- 
plied to  ones  nationals.  Besides  it  will  not  be  pos- 
sible to  requisition  the  inhabitants  of  occupied  ter- 
ritory,  to  co-operate  in  operations  of  war  against 


INTERNATIONAL    LAW  221 

their  own  country.  Article  52  of  the  rules  of  The 
Hague  confines  itself  to  saying: 

"Requisitions  in  kind  and  services  shall  not  be 
demanded  from  municipalities  or  inhabitants  except 
for  the  needs  of  the  army  of  occupation.  They  shall 
be  in  proportion  to  the  resources  of  the  country***." 

One  can  see  that  from  this  article  there  flow 
three  restrictions  on  the  right  of  requisition.  It 
must: 

(1)  Only  extend  to  the  satisfying  of  the  needs 
of  the  army; 

(2)  Not  to  be  for  the  army  a  method  of  enrich- 
ing itself  (which  excludes  the  requisitioning  of  ob- 
jects of  luxury); 

(3)  Be  in  proportion  to  the  resources  of  the 
country. 

These  restrictions  no  not  forbid  the  application 
of  the  domestic  rule;  they  reconcile  themselves  very 
well  to  it,  and  even  afford  a  guaranty  for  the  occupied 
country. 

What  has  been  said  is  based  on  the  idea  which 
obtains  among  the  military  nations  of  Europe,  where 
even  in  time  of  peace  supplies  may  be  requisitioned 
for  the  armies,  and  where  in  time  of  war  the  support 
of  the  armies  is  the  prime  factor  in  the  national  life. 

With  us  in  practice  it  is  different  and  within  our 
own  territory  neither  in  time  of  peace  nor  in  time  of 
war  is  it  expected  that  the  army  shall  be  supplied 
except  by  purchase  in  the  ordinary  way  of  business. 
In  theory  there  can  be  no  doubt,  however,  of  the  right 
of  the  nation  to  maintain  its  life  by  the  use  of  requi- 
sitions, should  it  be  necessary  to  do  so,  subject  to  the 
constitutional  requirement  that  private  property  shall 
not  be  taken  for  public  use  without  just  compen- 
sation. This  very  requirement  of  the  constitution 
indicates  that  private  property  may  be  taken  for 
public  use.    The  normal  application  of  the  constitu- 


222  ELEVENTH    LECTURE 

tional  provision,  is  to  property  taken  under  the  right 
of  Eminent  Domain.    This  Cooley  defines  as  follows: 

"The  lawful  authority  which  exists  in  any  sov- 
ereignty to  control  and  regulate  those  rights  of  a  pub- 
lic nature  which  pertain  to  its  citizens  in  common, 
and  to  appropriate  and  control  individual  property  for 
the  public  benefit,  as  the  safety,  necessity,  conven- 
ience or  welfare  may  demand." 

Cooley,  however,  takes  the  view  that  the  right  of 
eminent  domain  demands  for  its  fulfillment  legislative 
preparation  and  he  makes  no  allowance  for  the  ex- 
ercise of  the  right  of  domestic  requisition  under  what 
we  may  call  a  state  of  martial  law  or  an  emergency. 
Willoughby,  however,  holds  that: 

'  'Private  property  may  be  seized  and  appropriated 
to  a  public  use  without  the  consent  of  the  owner, 
when  the  public  necessity  demands.' ' 

That  this  public  necessity  may  be  a  war  necessity 
is  clearly  accepted  by  the  Supreme  Court  as  is  shown 
by  the  cases  of  Mitchell  vs.  Harmony,  13  Howard; 
and  United  States  vs.  Russell,  13  Wallace.  To  war- 
rant the  taking,  the  necessity  must  be  immediate. 
If  there  be  time  and  opportunity,  the  supplies  should 
be  contracted  for  in  the  usual  way.  If  time  and  op- 
portunity for  a  free  contract  be  lacking,  the  supplies 
may  be  seized,  subject  to  future  compensation. 

Our  Field  Service  Regulations  contain  the  re- 
quirement, that  supplies  in  our  own  country  or  in  that 
of  an  ally  be  obtained  by  purchase  and  provide  for 
the  method  of  making  requisitions  in  a  hostile  ter- 
ritory. When  possible,  it  is  undoubtedly  best  to  levy 
requisitions  through  the  political  chiefs  of  the  hostile 
community  as  by  this  method  the  requirements  of 
The  Hague  convention  are  most  likely  to  be  observed. 

We  cannot  be  guided  by  any  domestic  rule  since 
none  obtains  in  the  United  States,  and  should  such  a 


INTERNATIONAL    LAW  223 

rule  ever  be  established  it  will  be  formulated  when 
the  emergency  arises. 

Right  of  Requisition— Authorities  to  Whom 
Requisitions  Should  be  Addressed.— The 
law  determines  with  care  the  authorities  who 
may  exercise  the  right  of  requisition.  This  right 
belongs  to  the  military  (the  local  com- 
manding officer)  who  may  of  course  delegate 
it  to  the  functionaries  of  the  supply  corps.  In  order 
to  avoid  abuses,  this  right  of  requisition  should  not 
be  exercised  by  an  authority  of  too  low  a  grade,  a 
fortiori,  not  by  private  soldiers.  It  is  only  in  very 
exceptional  cases  that  a  requisition  should  be  ad- 
dressed directly  to  the  inhabitants.  The  importance 
of  municipalities  in  matters  of  requisition  is  easily 
understood;  they  can  give  every  guaranty  for  the 
just  division  of  the  charges  imposed  by  the  order  of 
requisition,  and  at  the  same  time  insure  their  prompt 
execution. 

Forms  in  which  the  Right  of  Requisition 
Must  be  Exercised— Order  of  Requisition- 
Receipt. —Every  requisition  should  be  in  writing. 
The  writer  of  the  requisition  should  hand  over  an 
order  of  requisition  taken  out  of  a  stub  book,  and  give 
a  receipt  on  which  he  will  place  sufficient  notations 
to  indicate  the  conditions  under  which  the  requisition 
was  furnished. 

In  regard  to  the  details  connected  with  the  levy- 
ing of  requisitions,  our  field  service  regulations,  and 
the  blank  forms  which  have  been  prepared,  will  give 
us  the  required  data.  So  far  as  I  have  seen  these 
forms,  they  are  prepared  mainly  with  a  view  of  deal- 
ing directly  with  individuals,  and  seem  to  indicate 
the  idea  that  the  occupant  will  either  seize,  directly, 
the  property  of  individuals  by  a  foraging  force  or 
will  call  upon  the  people  of  the  district  to  bring  in  the 
required  articles  and  receive  pay  for  them.    It  is  true, 


224  ELEVENTH    LECTURE 

however,  that  the  field  service  regulations  say  that  if 
practicable,  aid  of  civil  authorities  will  be  had. 

As  has  been  already  said,  modern  conditions  would 
demand  that  requisitions  be  made,  if  possible,  through 
the  local  enemy  authorities,  leaving  it  to  the  latter  to 
make  the  assessments  with  a  knowledge  of  the  capa- 
city of  the  individuals  of  their  community.  If  time 
and  duties  will  permit,  probably  the  most  satisfactory 
way  of  conducting  the  business  would  be  to  call  on  the 
authorities  for  the  needed  supplies,  and  then,  when 
they  are  delivered,  to  pay  the  individuals  concerned, 
or  give  receipts,  or  both,  in  the  presence  of  some  offi- 
cial of  the  locality. 

It  has  been  suggested  that  it  is  unnecessary  to 
deliver  an  order  of  requisition  in  the  case  where  the 
requisition  is  followed  by  payment  for  the  articles 
requisitioned.  This  is  an  error,  since,  if  the  inhab- 
itant has  no  proof  to  show,  a  new  requisition  might 
be  required  of  him,  and,  besides,  he  may  be  accused 
by  his  own  nationals  of  having  entered  into  dealings 
with  the  enemy.  (This  case  actually  presented  itself 
in  1870.)  The  requisitioning  authority,  therefore,  is 
morally  bound  to  deliver  an  order  of  requisition  so 
that  a  population  may  justify  the  constraint  which 
has  been  placed  upon  it. 

Our  Field  Service  Regulations  are  silent  on  this 
point  and  make  no  requirement  that  the  requisition 
shall  be  in  writing.  It  would  seem  preferable  that 
this  method  be  employed  when  possible,  either  by 
distributing  copies  of  the  order  directing  the  requisi- 
sition,  translated  into  the  local  tongue,  or  by  memo- 
randa, given  to  individuals,  enumerating  the  supplies, 
and  the  quantities  thereof,  which  they  are  to  furnish. 
There  can  then  be  no  recrimination  as  to  the  amount 
to  be  delivered.  The  last  course  becomes,  of  course, 
unnecessary  when  the  requisitions  are  called  for 
through  the  officers  of  the  locality. 


INTERNATIONAL    LAW  226 

General  Orders  100,  in  par.  38,  holds  that:  "Pri- 
vate property,  unless  forfeited  by  crimes  or  by  offen- 
ses of  the  owner,  can  be  seized  only  by  way  of  mili- 
tary necessity  for  the  support  or  other  benefit  of  the 
Army  of  the  United  States. 

*  'If  the  owner  has  not  fled,  the  commanding  officer 
will  cause  receipts  to  be  given,  which  may  serve  the 
spoliated  owner  to  obtain  indemnity.' ' 

The  principle  set  forth  in  the  last  paragraph  in 
regard  to  a  receipt  appears  in  The  Hague  Convention 
of  1899  and  is  retained  in  that  of  1907  (Art.  52)  as  fol- 
lows: 

"Contributions  in  kind  shall  as  far  as  possible  be 
paid  for  in  cash;  if  not,  a  receipt  shall  be  given  *  *  *" 

It  may  also  be  asked  if  the  requisition,  when  paid 
for  and  liquidated  immediately,  should  be  accompa- 
nied by  a  receipt.  The  requirement  of  the  rules  of 
The  Hague  which  we  have  just  cited  seems  to  decide 
this  in  the  negative.  However,  as  already  stated,  it 
would  seem  proper  that  a  receipt  be  given,  in  order  to 
safeguard  the  responsibility  of  the  inhabitant  who 
fills  the  requisition,  to  permit  him  to  prove  later  to 
the  authorities  of  his  country  that  he  had  been  forced 
by  the  requisition  to  furnish  to  the  enemy  that  which 
had  been  asked  of  him,  and  so  to  avoid  future  com- 
plications. 

Requisitions  made  in  national  territory  always 
give  the  right  to  an  indemnity  (Art.  V  of  the  Consti- 
tution).    But  this  is  an  affair  of  interior  economy. 

If  the  requisition  is  made  in  enemy  territory,  it 
is  an  international  affair. 

The  Hague  rules  of  1899  stated  that  the  presta- 
tions should  be  as  much  as  possible  paid  for  in  cash; 
otherwise  they  should  be  evidenced  by  receipts.  Cash 
payments  are  very  useful,  and  it  has  often  been 
observed  that  in  certain  places  where  requisitions 
had  produced   nothing,  the  announcement  of  cash 


226  ELEVENTH    LECTURE 

payments  caused  an  influx  of  provisions.  In  regard 
to  settling  for  requisitions,  in  other  days  it  was  a 
question  to  be  determined  between  the  belligerent 
states  in  the  treaties  of  peace  which  they  made, 
and  the  indemnity  was  adjusted  between  the  home 
state  and  the  communes  or  the  individuals  who  had 
been  subjected  to  requisition. 

There  was,  therefore,  no  obligation  on  the  bel- 
ligerent who  had  delivered  receipts  to  reimburse  for 
the  requisitions  made. 

In  1907  a  small  but  genuine  revolution  was  op- 
erated in  this  matter,  and  this  without  any  noise. 
For  there  were  added  these  few  words  to  Article  52, 
above  cited : 

"And  the  payment  of  the  amount  due  shall  be 
made  as  soon  as  possible/ ' 

Here  was  a  fundamental  change.  It  is  now  de- 
termined that  there  is  to  be  given  a  receipt  which 
evidences  a  debt  due  by  the  belligerent  who  has  made 
a  requisition,  and  that  this  debt  should  be  settled  as 
soon  as  possible.  This  is  an  international  agreement. 
Undoubtedly  the  conqueror  will  include  in  the  amount 
which  he  will  claim  as  a  war  indemnity  the  sums  thus 
paid  out,  but  it  was  thought,  as  a  practical  fact,  that 
the  owners  of  the  property  requisitioned  were  par- 
ticularly to  be  considered,  and  should  be  indemnified 
earlier  than  in  times  gone  by.  We  must  take  into 
account,  however,  the  good  will  of  the  belligerent ; 
if  he  does  not  execute  the  provision  of  Article  52 
there  exists  no  means  of  coercing  him.  But  he  can 
not  be  indifferent  to  the  fact  that  this  proviso  was 
enacted ;  and  there  is  here  a  true  obligation  which 
may  be  enforced,  if  need  be,  under  Article  3  : 

"A  belligerent  party  which  violates  the  pro- 
visions of  the  said  Regulations  shall,  if  the  case  de- 
mands, be  liable  to  pay  compensation." 

Authority  Created  by  the  Law  and  Regula- 


INTERNATIONAL    LAW  227 

tions.  -  The  prescriptions  of  law  in  regard  to  requisi- 
tions are  laid  down  very  positively.  These  bear  on 
two  points : 

(1)  Limitation  on  the  right  of  requisition. 

(2)  Penalty  incurred  by  the  party  on  whom  re- 
quisition is  made  and  who  refuses  to  conform  thereto. 

There  may  be  an  abuse,  or  an  exceeding,  of 
authority ;  there  is  an  abuse  when  a  competent 
authority  exercises  the  right  of  requisition  without 
conforming  to  the  laws  of  war ;  there  is  an  exceed- 
ing of  authority  if  a  military  person  has  not  the 
necessary  rank  which  will  authorize  him  to  exercise 
the  right  of  requisition. 

Where  the  right  of  requisition  is  improperly  ex- 
ercised, the  punishment  of  the  officer  or  man  who  is 
responsible  will  be  in  accordance  with  the  laws  of  his 
own  country. 

In  the  United  States  army  if  an  officer  or  an  en- 
listed man  should  undertake  to  levy  requisitions  with- 
out proper  authority  he  would  be  tried  by  court-mar- 
tial under  an  appropriate  article  of  war,  dependent 
on  the  facts  of  the  case. 

Should  the  authorities  of  an  occupied  territory 
who  have  been  called  upon  for  a  requisition,  or  an  in- 
dividual upon  whom  a  similar  call  has  been  made,  re- 
fuse to  honor  it,  they  may  be  tried  by  a  military 
commission,  the  charges  being  framed  to  suit  the 
case.  It  will  be  observed  that  the  refusal  to  produce 
the  supplies  (where  it  can  be  done)  is  today  a  viola- 
tion both  of  international  law  and  of  our  domestic 
law  since  we  have  adhered  to  the  convention. 

What  has  been  said,  however,  must  be  under- 
stood as  referring  only  to  the  case  where  our  adver- 
sary is  also  a  signer  of  The  Hague  Convention  ;  other- 
wise questions  of  requisition  are  merely  determined 
by  the  custom  which  we  may  choose  to  observe,  and 
by  our  own  regulations. 


228  ELEVENTH    LECTURE 

Should  the  penal  rights  above  mentioned  be  ex- 
ercised ? 

Yes,  since  an  authority  over  the  inhabitants  is 
very  necessary  in  enemy  territory,  because  of  the 
natural  resistance  which  the  enemy  will  offer.  On 
the  other  hand,  the  discipline  of  the  army  itself  will 
require  it  wherever  the  army  may  go,  and  so  also 
will  the  interests  of  security,  in  order  that  the  inhab- 
itants of  occupied  territory  may  not  be  incited  to  rise 
in  insurrection. 


TWELFTH  LECTURE 


Contributions  of  War 

^KHIS  is  the  appropriate  term  for  requisitions  in 
V»/  money.  Requisitions  in  kind  and  contribu- 
tions are,  as  a  matter  of  fact,  two  acts  of  the 
same  nature.  They  are  acts  of  constraint,  generally 
enforced  against  a  local  political  unit  as  representing 
the  inhabitants,  in  order  to  obtain  from  them  services 
and  things;  in  kind  in  the  case  of  a  requisition;  in 
money  in  the  case  of  a  contribution. 

Origin  of  Contributions  of  War.— In  other 
days,  when  all  property  of  the  enemy  was  a  good 
prize,  without  distinction  between  the  property  of 
the  state  and  that  of  individuals,  contributions  of 
war  played  an  important  role.  For  a  long  time  the 
idea  was  accepted  that  "war  should  support  war." 
During  the  wars  in  Italy,  Bonaparte  sent  to  the 
Directoire  millions,  which  he  had  procured  by  levying 
contributions  in  the  occupied  country.  Contributions 
of  war  were  then  looked  upon  as  a  ransom  for  pillage 
and  burning.  Thus,  all  sought  to  free  themselves 
and  purchase  immunity  from  booty,  pillage  and 
devastation  by  the  payment  of  a  sum  of  money.  But 
today  pillage  is  no  longer  permitted;  one  cannot, 
therefore,  explain  contributions  by  this  argument. 

Cases  in  Which  Contributions  of  War  are 
Legitimate. —There  are  two  cases  which  are  fore- 
seen by  Article  49  of  the  rules  of  The  Hague: 

(1)  When  contributions  of  war  are  levied  to  take 
the  place  of  taxes  with  a  view  to  administering  the 
occupied  territory.  (This  case  we  have  already  ex- 
amined.) 


230  TWELFTH    LECTURE 

(2)  When  a  contribution  of  war  is  substituted 
for  requisitions  in  kind  in  order  to  buy  supplies  which 
the  army  needs. 

Practically,  the  latter  form  of  action  tends  to 
become  more  and  more  general;  armies  often  sub- 
stitute contributions  for  requisitions.  This  method 
of  substitution  has  its  advantages,  but  it  also  has  its 
disadvantages,  and  it  raises  difficulties  from  a  theo- 
retical point  of  view. 

The  advantages  which  may  result  from  the 
method  which  we  have  just  outlined  are  the  follow- 
ing: The  occupant  will  buy  things  which  he  needs 
with  money  obtained  by  means  of  contributions,  and 
by  this  very  fact  will  procure  them  more  readily. 
There  are,  most  certainly,  things  which  the  inhabi- 
tants will  hide  if  there  be  requisitions,  whereas  in 
the  case  of  purchases  made  thanks  to  sums  furnished 
by  contribution,  since  they  will  no  longer  have  any 
interest  in  concealing  them,  they  will  allow  supplies 
to  appear  which  the  army  may  need  but  which  had 
remained  carefully  hidden. 

The  invader  and  the  occupant  will  also  exercise, 
by  making  use  of  contributions,  one  less  method  of 
irritating  the  inhabitants,  will  economize  time,  avoid 
disorder,  and  assure  the  troops  better  supplies,  be- 
cause when  requisitioned,  the  inhabitants  will  ordi- 
narily deliver  only  supplies  of  inferior  quality. 

The  inhabitants  will  also  find  an  advantage, 
since  the  contribution  will  permit  the  apportionment 
of  the  sacrifice  demanded  to  the  resources  of  each 
and  better  spread  the  required  sum  among  those 
taxed,  whereas,  in  the  case  of  a  requisition  in  kind, 
only  those  who  possess  the  things  requisitioned  will 
suffer,  at  least  for  the  time  being. 

But  the  method  also  has  its  inconveniences;  it 
may  lead  to  greater  abuses,  perhaps,  than  those  re- 
sulting from  requisitions  in  kind.      In  regard  to  the 


INTERNATIONAL    LAW  231 

latter,  there  must  be  a  relation  between  the  needs  of 
the  army  and  the  things  requisitioned.  In  addition, 
the  inhabitants  may  be  more  exposed  in  certain 
cases:  One  body  of  troops  will  ask  for  a  sum  of 
money,  another  for  things  in  kind:  The  new  troops 
which  replace  the  first  cannot  ask  for  a  sum  of  money 
since  the  preceding  troops  have  already  insisted  on 
that;  they  will  requisition  the  things  which  were 
understood  to  be  protected  by  means  of  the  contribu- 
tion which  had  been  paid.  It  will  end  in  everything 
being  requisitioned;  things  in  kind,  and  money,  and 
the  inhabitants,  after  having  first  paid  in  money, 
will  often  be  obliged  to  pay  the  second  time  in  kind. 

One  can  see  that  if  a  sum  of  money  is  required, 
there  is  a  greater  possibility  of  abuses  being  com- 
mitted; nevertheless,  the  substitution  of  the  con- 
tribution in  cash  for  the  requisition  in  kind,  suggested 
by  the  conference  of  The  Hague  in  1899,  did  not 
occasion  any  difficulty  in  the  conference  of  1907. 

Besides  the  two  cases  which  have  just  been  ex- 
amined, there  are  occasions  where  contributions  of 
war  are  levied  under  title  of  fines.  These  contribu- 
tions lend  themselves  to  the  arbitrary.  As  a  matter 
of  fact,  they  have  often  been  insisted  upon  and  in 
unjust  and  absurd  amounts;  for  example,  when  a 
commune  was  held  responsible  for  acts  which  had 
occurred  on  its  territory  (Bridge  of  Fontenoy,)  with 
the  object  of  obliging  a  commune  to  paralyze  the 
effort  of  its  own  compatriots  and  to  prevent,  by 
terror,  recurrence  of  certain  acts.  Today,  by  apply- 
ing Article  50  of  the  rules  of  The  Hague  (laws  and 
customs  of  war  on  land),  we  see  that  this  method  of 
action  is  prohibited. 

"No  general  penalty,  pecuniary  or  otherwise, 
shall  be  inflicted  upon  the  population  on  account  of 
the  acts  of  individuals  for  which  they  cannot  be  re- 
garded as  jointly  and  severally  responsible/ ' 


232  TWELFTH    LECTURE 

(Surprise  was  caused  by  the  acceptance  of  this 
clause,  without  protest,  by  the  German  delegates.) 

Thus,  when  individual  acts  are  committed  a  con- 
tribution may  not  be  imposed  under  title  of  a  fine. 
The  communes  have  not  the  necessary  police  power 
to  prevent  the  accomplishment  of  certain  individual 
acts;  collective,  concerted  movements  alone,  the 
movements  of  '  'ensemble/ '  might  carry  with  them  a 
collective  penalty,  pecuniary  or  otherwise. 

To  assemble  the  inhabitants  of  a  commune  on 
whose  territory  an  individual  act  has  been  committed, 
and  to  draw  lots  for  two  of  them  to  be  shot  is  an  out- 
rageous act.  Such  was  the  case  of  those  unfortunate 
young  men  of  Vaux,  in  the  Ardennes,  who  were  shot 
on  October  28,  1870,  because  it  had  been  impossible 
to  catch  another  inhabitant  guilty,  it  was  said,  of 
having  killed  a  Prussian  non-commissioned  officer; 
who,  it  seems  as  a  matter  of  fact,  had  been  killed  in 
a  regular  engagement  against  the  Francs-Tireurs. 
All  the  young  men  of  the  village  were  confined  in  the 
church,  and  lots  were  drawn  for  the  two  victims. 

Outside  of  the  cases  above  cited,  there  are  no 
circumstances  in  which  contributions  of  war  would 
be  legitimate.  Clearly,  we  may  set  aside  the  cases 
where  the  contribuitons  would  be  simply  a  method  of 
gaining  treasure,  or  where  they  would  only  tend  to 
exercise  pressure  upon  the  inhabitants  to  force  them 
to  desire  peace.  This  would  be  to  employ  pillage, 
organized  after  a  more  or  less  disguised  fashion, 
in  order  to  obtain  the  cessation  of  hostilities. 

The  Collection  of  Contributions  of  War.  — 
The  collection  of  contributions  in  money  must  be  or- 
ganized after  a  more  strict  fashion  than  that  of  re- 
quisitions in  kind.  In  regard  to  contributions,  there 
is  an  international  question  involved.  They  never 
result  from  as  urgent  a  need  as  do  prestations  in  kind; 
their  collection  must  be  organized  in  a  more  rigid 


INTERNATIONAL    LAW  233 

fashion;  this  is  a  guaranty  against  abuse.  They 
should  be  ordered  only  by  the  highest  authorities. 

Our  Field  Service  Regulations  say  that  contribu- 
tions '  'are  generally  collected  by  the  local  authorities 
on  orders  from  the  Commander  of  an  invading  army. " 

Article  51,  paragraph  1,  of  the  rules  of  The 
Hague,  reads  as  follows: 

"No  contributions  shall  be  collected  except  under 
a  written  order,  and  on  the  responsibility  of  a  Com- 
mander-in-chief . " 

There  must,  therefore,  be  a  written  order  and 
there  should  be  a  receipt.  This  receipt  will  permit 
one  who  has  contributed  to  avoid  being  struck  a 
second  time,  or  prevent  his  claiming  an  improper  re- 
imbursement. 

The  second  paragraph  of  Article  51  adds  that  as 
far  as  possible  these  contributions  will  only  be  levied 
under  the  rules  of  assessment  and  incidence  of  the 
taxes  in  force. 

This  is  absurd.  It  will  be  impossible  for  the  oc- 
pant  to  conform  to  this  requirement;  he  will  lack  the 
personnel  and  the  materiel,  which  will  have  disap- 
peared at  the  same  time  as  the  tax  lists  of  the 
locality.  There  will  remain  only  the  municipalities, 
to  whom  will  be  addressed  the  orders  for  contribu- 
tions, and  who  will  arrange  among  themselves,  as 
best  they  can,  for  their  execution. 

To  end  the  question  of  contributions  of  war, 
there  remains  a  word  to  be  said  in  regard  to  a  theory 
which  has  recently  been  put  forth  respecting  their 
justification.  It  has  been  said  that  sometimes  con- 
tributions constitute  a  species  of  advance  on  the  war 
indemnity  which  is  to  follow.  This  is  a  theory  which 
cannot  be  admitted;  such  an  argument  cannot  be 
taken  seriously.  Obviously  it  is  not  certain  that  the 
invader  or  occupant  will  be  the  ultimate  conqueror, 
or,  even  if  he  be,  that  he  will  have  the  right  to  an 


234  TWELFTH    LECTURE 

indemnity.  In  the  case  where  an  indemnity  is  due, 
it  should  be  raised  over  all  the  territory  of  the  con- 
quered country  and  paid  by  the  entire  nation  and  not 
by  the  population  of  a  partictlar  part  of  the  territory 
temporarily  occupied.  The  German  manual  may  be 
quoted  here: 

'  'Contributions  should  not  have  the  character  of 
an  arbitrary  enrichment  of  the  conqueror.  Particu- 
larly, the  conqueror  is  not  authorized  to  cover  the 
cost  of  the  war,  even  should  it  have  been  imposed 
upon  him  by  the  adversary,  by  means  of  entrench- 
ments on  private  property.' ' 

In  the  following  case,  for  example,  a  contribution 
was  not  warranted:  On  the  29th  of  September,  1870, 
the  mayor  of  Versailles  received  an  order  through 
which  the  German  authorities  notified  him  that  in 
order  to  indemnify  the  crews  of  German  commercial 
vessels  who  had  been  taken  prisoners,  and  the  Ger- 
mans who  had  been  expelled  from  France,  the  King 
of  Prussia  had  decided  to  tax  the  occupied  depart- 
ments by  a  contribution  of  a  million  francs.  The 
share  due  from  the  city  of  Versailles  was  400,000 
francs.  This  sum  was  to  be  paid  within  the  delay  of 
a  week. 

Even  admitting  that  an  indemnity  was  due  under 
the  above  facts,  it  would  not  be  due  from  the  depart- 
ments occupied  alone.  Besides,  a  contribution  of 
this  nature  could  not  be  considered  as  an  advance  on 
a  war  indemnity.  It  was  arbitrary.  The  mayor  of 
Versailles  replied  to  the  German  authorities  that  the 
city  had  already  been  very  much  tried,  and  that  it 
was  impossible  for  it  to  procure  the  sum  demanded 
in  so  short  a  time.  He  refused  to  pay,  and  the 
German  authorities  waived  the  contribution. 

Railroads  in  Time  of  War 

The  Importance  of  Railroads  in  Time  of  War. 


INTERNATIONAL    LAW  235 

—Railroads  play  a  more  or  less  important  role  in 
modern  wars,  either  as  a  means  of  attack,  a  means 
of  defense,  a  means  of  going  forward  or  of  retreat- 
ing, of  supplying  the  combatants,  or  of  evacuating 
the  sick  and  wounded.  So  the  various  states  have 
taken  it  upon  themselves  to  establish  regulations  in 
regard  to  the  exploitation  of  railroads  in  time  of  war. 

While  what  follows  in  regard  to  railroads  is  large- 
ly based  on  European  continental  conditions  it  is  ap- 
plicable in  law  to  the  United  States  since  we  have  ad- 
hered to  the  conventions,  and  the  question  is  one  of 
the  use  of  property.  Should  at  some  future  time  the 
government  take  over  the  ownership  of  our  railroads, 
the  applicability  of  the  conventions  will  be  marked. 

Exploitation  of  Railroads  in  Time  of  Peace 
and  in  Time  of  War.  —There  are  various  systems  of 
exploitation  in  all  countries  in  time  of  peace.  Some- 
times the  exploitation  is  by  the  state  alone,  and  some- 
times by  private  companies.  In  France  the  system 
is  a  mixed  one,  and  both  modes  of  exploitations  are 
used.  The  railroads  are  exploited  by  the  state  or  by 
private  companies.  Where  the  companies  exploit, 
they  are  the  owners  of  the  stations  and  of  the  rolling 
stock,  but  the  right  of  way  itself  forms  part  of  the 
public  domain  of  the  state  which  is  conceded  to  the 
company's  use  for  a  time. 

In  Germany  most  of  the  railroads  are  govern- 
ment property  and  in  Russia  virtually  all  of  them 
are.  In  other  continental  states  the  ownership  and 
method  of  exploitation  vary.  In  England,  as  in  the 
United  States,  the  railroads  are  private  property. 

Whatever  be  the  method  of  exploitation,  the  state 
exercises  a  most  important  control  over  the  railroads 
from  the  point  of  view  of  the  needs  of  war. 

At  a  time  of  mobilization  the  French  government 
may  requisition  the  railroads  by  virtue  of  the  laws  of 
July  3,  1876,  and  moreover,  the  law  of  December  28, 


236  TWELFTH    LECTURE 

1888,  place  the  railroads,  in  time  of  war,  at  the  disposal 
of  the  minister  of  war.  In  case  of  mobilization  the 
government  lays  its  hands  on  the  railroads  which 
pass,  so  to  speak,  as  a  whole  to  the  state.  In  the 
United  States  the  law  of  June  29,  1906,  affords  some 
assistance;  it  contains  an  amendment  to  the  Interstate 
Commerce  Act  and  reads  as  follows: 

"That  in  time  of  war  and  threatened  war  pref- 
erence and  precedence  shall,  upon  the  demand  of  the 
President  of  the  United  States,  be  given  over  all 
other  traffic,  to  the  transportation  of  troops  and  ma- 
terial of  war,  and  carriers  shall  adopt  any  means 
within  their  control  to  facilitate  and  expedite  the 
military  traffic. "        ( **  stat.  m ) 

Beyond  this  there  is  no  law  of  the  United  States 
bearing  directly  on  the  handling  of  railroads  in  time 
of  war.  Of  course  what  has  been  said  in  regard  to 
requisition  applies  to  common  carriers  as  well  as  to 
other  property  owners. 

Rights  of  Belligerents  over  Railroads  from 
the  Viewpoint  of  International  Law.— A  distinc- 
tion must  be  made  between  the  right  of  way,  which 
may  belong  to  the  state,  and  the  stations  and  rolling 
stock  which,  belong  to  the  state  or  to  private  cor- 
porations, according  to  the  system  of  railroad  ex- 
ploitation in  force. 

The  Right  of  Way.— The  invader  or  occupant 
has  the  right  to  seize  the  right  of  way  and  use  it  for 
his  own  account,  or  to  prevent  its  use  by  the  adver- 
sary. He  may  even  destroy  it  in  the  course  of  mili- 
tary operations,  when  this  destruction  is  necessary 
to  his  security.  The  military  authorities  may,  in 
order  to  prevent  the  march  of  an  adversary,  have 
an  interest  in  blowing  up  a  bridge,  in  destroying  a 
line;  and  the  right  of  the  adversary  is  the  same  what- 
ever be  the  method  of  exploiting  the  railroad.    These 


INTERNATIONAL    LAW  237 

destructions  may  therefore  take  place  when  military 
operations  require  it. 

It  is  perhaps  unnecessary  to  state  that  in  the 
United  States  the  government  has  no  more  title  to  the 
right  of  way  of  a  railroad  than  it  has  to  any  other 
private  property  except  in  those  cases  where  a  rail- 
road company  has  obtained  an  easement  over  Federal 
land.  Of  the  right  of  a  government,  however,  to 
make  use  of  a  railroad  right  of  way,  whatever  be  the 
title  to  it,  as  a  measure  of  war  necessity  there  can 
be  no  doubt. 

But  in  case  of  sudden  invasion,  for  example,  if 
these  measures  are  incautiously  taken,  grave  danger 
may  result  to  moving  trains,  and  to  private  persons. 

This  may  happen,  particularly  when,  as  the  re- 
sult of  a  bold  raid,  the  destruction  of  a  part  of  the 
right  of  way  has  been  accomplished  on  territory  oc- 
cupied by  the  enemy. 

Certain  authors  have  asked  that,  in  such  cases, 
the  adversary  be  notified  in  order  that  accidents  be 
prevented.  The  occupant  or  the  invader  has  the 
right  to  use  the  right  of  way  and  even  to  destroy  it 
whatever  be  the  ownership  thereof,  without  previous 
notice.  But  it  is  to  be  hoped,  particularly  in  view  of 
a  case,  such  as  that  mentioned  above,  that  hostilities 
will  not  be  commenced  without  notice.  When  one 
operates  on  ones  own  territory  in  order  to  retard  the 
invader,  the  question  is  one  of  domestic  right.  But 
undoubtedly  the  invader  has  the  same  right  to  use 
the  right  of  way  as  he  would  to  use  a  road. 

Stations,  Rolling  Stock,  etc. -The  question 
is  a  very  simple  one,  when  the  invader  or  the  occu- 
pant uses,  on  the  right  of  way,  his  own  materiel,  but 
what  is  the  right  of  the  occupant  in  regard  to  the 
materiel  of  the  adversary? 

Clearly,  if  the  adversary  has  been  foresighted, 
the  occupant  will  not  have  occasion  to  use  much  of 


238  TWELFTH    LECTURE 

the  materiel.  The  adversary  will  run  it  off  at  the 
beginning  of  the  operations.  However,  there  may 
have  been  a  surprise,  a  blockade,  a  damaged  line. 
Here,  theoretically,  one  must  distinguish  between  the 
rolling  stock  of  private  companies  and  that  of  the 
state. 

In  regard  to  the  rolling  stock  of  railroad  com- 
panies, the  general  rule  in  regard  to  the  respect  for 
private  property  must  be  applied.  The  invader  or 
occupant  may  not  appropriate  to  himself  this  materiel, 
but  he  may  use  it  if  necessary  by  means  of  requisi- 
tion. 

If  it  be  the  rolling  stock  of  the  state,  the  ques- 
tion presents  itself  under  a  different  aspect,  since 
here  the  principle  of  respect  for  private  property  is 
not  as  absolute.  A  difference  is  recognized  between 
personal  and  real  property.  In  regard  to  personal 
property,  there  is  a  subdistinction  between  materiel 
adaptable  to  war  use  and  materiel  not  so  adaptable. 

All  property  usable  in  the  operations  of  war  is 
liable  to  appropriation.  Should  the  rolling  stock  be- 
longing to  the  enemy  state  be  classed  in  this  category? 
May  it  be  the  object  of  confiscation?  There  are  cases 
where  no  doubt  is  possible;  as,  for  instance,  where 
the  rolling  stock  has  been  especially  prepared  for  the 
operations  of  war  (iron  clad  locomotives,  etc. ) .  Ma- 
teriel of  this  kind  is  a  good  capture. 

But  what  will  happen  in  regard  to  the  rest  of  the 
materiel?  It  is  materiel  which  is  occasionally  used 
for  a  purpose  of  war  in  the  same  way  as  are  wagons, 
when  requisitioned,  but  which  in  time  of  peace  have 
a  commercial  purpose.  It  seems  going  very  far  to 
say  that  this  materiel  is  a  good  capture,  because,  in- 
cidentally, it  may  serve  for  the  purpose  of  war.  It 
may  be  retained,  it  may  be  held  and  utilized,  but  to 
conclude,  there  should  not  be  confiscation  in  either 


INTERNATIONAL    LAW  239 

case.  There  is  no  right  of  confiscation;  there  is 
simply  a  right  to  use. 

Rolling  Stock  of  Neutral  States.— France 
and  Germany  are  neighbors  of  three  neutral  states 
(Switzerland,  Luxemburg  and  Belgium).  It  may 
happen  at  the  beginning  of  a  war  railroad  cars  be- 
longing to  one  of  these  neutral  states  will  be  found 
in  the  territory  of  a  belligerent.  Will  they  be  an  ob- 
ject of  appropriation,  or  will  they  be  immediately  re- 
turned? After  discussion,  they  adopted,  in  1907,  the 
following  rule: 

"Railway  materiel  coming  from  the  territory  of 
neutral  Powers,  whether  it  be  the  property  of  the 
said  Powers  or  of  Companies  or  private  persons,  and 
recognizable  as  such,  shall  not  be  requisitioned  or 
utilized  by  a  belligerent  except  where  and  to  the  ex- 
tent that  it  is  absolutely  necessary.  It  shall  be  sent 
back  as  soon  as  possible  to  the  country  of  origin.,, — 

Article  19,  of  Convention  respecting  the  rights  and  duties  of  neutral  powers. 

Then  the  inverse  case  was  prepared  for;  it  may 
be  that  in  the  neutral  country  there  are  French  or 
German  cars.  The  neutral  may  only  hold  these  cars 
until  they  are  exchanged.  "A  neutral  power  may 
likewise,  in  case  of  necessity,  retain  and  utilize  to  an 
equal  extent  materiel  coming  from  the  territory  of 
the  belligerent  Power. 

"Compensation  shall  be  paid  by  one  party  or  the 
other  in  proportion  to  the  materiel  used  and  to  the 
period  of  usage." 

The  Commercial  Use  of  Railroads  by  the 
Occupant.  —  It  may  happen  that  a  belligerent  will 
undertake  a  commercial  and  economic  exploitation  of 
the  railroads  of  the  country  which  he  occupies.  Under 
what  conditions  shall  the  exploitation  take  place,  and 
what  will  be  the  tariffs  applied?  In  general  the  oc- 
cupant will  apply  his  own  tariffs,  and  consider  the 
lines  of  the  occupied  country  as  a  prolongation  of  his 


240  TWELFTH    LECTURE 

own  lines.  There  will  be  profits  realized  from  this 
commercial  exploitation;  to  whom  will  they  belong? 
The  rule  is  very  simple. 

If  it  is  a  case  of  a  railroad  normally  exploited  by 
the  enemy  state,  the  occupant  will  appropriate  the 
revenues.  If  it  is  a  case  of  a  railroad  exploited  by  a 
private  company,  and  the  occupant  appropriates  to 
himself  the  net  profits,  he  would  be  confiscating  pri- 
vate property;  he  will  therefore  owe  to  the  company 
an  accounting  of  the  profits  realized. 

The  Right  of  Indemnity  of  Those  Who  Suffer  Loss 
and  Damage  Caused  by  War 

War  may  carry  with  it  losses  of  various  kinds, 
having  many  causes— loss  of  materiel,  destruction 
and  deterioration  of  private  property,  requisitions 
and  contributions  levied,  etc. 

Shall  these  losses  be  ultimately  borne  by  those 
who  have  suffered  them,  or  is  there  a  recourse  for 
their  benefit? 

This  is  a  question  of  domestic  law  which  has  been 
very  much  discussed.  It  presents  itself  to  every  bel- 
ligerent and  particularly  to  the  vanquished. 

It  seems  very  unjust  to  allow  the  victims  to  sup- 
port alone  the  weight  of  the  damage  caused  by  war, 
since  the  latter  has  been  the  result  of  an  act  of  the 
state. 

Is  then  the  state  charged  with  the  obligation  of 
indemnifying  the  victims?  The  French  laws  were 
quite  severe  in  their  provisions.  A  law  of  1853  held 
that  any  destruction  coming  as  an  act  of  war  gives 
right  to  an  indemnity  only  if  there  has  been  a  prelim- 
inary destruction  of  a  piece  of  property  as  an  ulti- 
mate preparation  for  an  incident  of  war. 

The  question  was  discussed  with  much  feeling  in 
1871.    Mr.  Thiers  caused  to  be  adopted  the  idea  that 


INTERNATIONAL    LAW  241 

there  was  for  the  state  no  legal  obligation  to  repair 
the  damage  caused  by  war,  but  only  a  moral  obliga- 
tion to  succor  the  victims  of  the  conflict.  There  is 
here  then,  for  the  state  but  a  simple  moral  duty:  a 
duty  to  fulfill,  and  not  an  obligation.  We  may  de- 
termine the  measure  of  our  charity  according  to  the 
extent  of  our  resources;  whereas,  we  could  not  so  de- 
termine the  measure  of  our  obligation. 

We  have  no  statutes  determining  the  question. 
After  the  Civil  war  innumerable  claims  for  indemnity 
were  advanced  by  Union  sufferers  and  aliens.  These 
were  handled  by  the  government  in  various  ways  and 
the  conclusions  reached  were  based  on  various  broad 
principles  which  when  digested  will  guide  us  in  the 
future  in  the  absence  of  direct  legislation. 

The  usually  accepted  doctrine,  and  this  is  the 
one  held  by  the  United  States,  is  that  for  property 
destroyed  in  the  active  train  of  war,  as  a  building 
demolished  or  burned  by  shell  fire,  no  compensation 
is  due;  but  that  property  destroyed  in  the  preparation 
for  war  may  be  paid  for.  Thus,  a  privately  owned 
house  situated  on  a  battlefield  and  in  the  line  of  fire, 
may  be  entirely  destroyed  without  the  owner  having 
a  right  to  compensation;  if  we  suppose,  on  the  con- 
trary, a  house  within  our  lines,  demolished  in  order 
to  establish  a  defensive  position,  or  partially  demol- 
ished in  order  to  furnish  an  element  in  the  defenses, 
we  have  a  case  where  the  owner  may  claim  compen- 
sation, so  also,  where  the  boards,  joists,  etc.,  are  re- 
moved from  the  house  to  make  a  bridge  for  the  mili- 
tary. This  was  the  principle  followed  by  the  Board 
of  Officers  on  Claims,  established  in  Manila  to  consider 
claims  following  the  insurrection  in  the  Philippines, 
in  determining  the  question  of  indemnifying  persons 
who  alleged  losses  of  property  during  the  various 
campaigns. 

After  the  war  of  1870-71  it  was  at  first  decided 


242  TWELFTH    LECTURE 

by  France  that  the  sum  of  one  hundred  million  francs 
should  be  allowed  the  victims  of  the  war;  then  France 
went  to  two  hundred  million  francs,  although  the 
grand  total  of  the  damage  done  had  been  estimated 
at  a  sum  above  four  hundred  million  francs. 

The  question  is  one  of  domestic  law  and  not  of 
international  law. 

France  paid  no  regard  to  the  nationality  of  the 
claimants,  and  indemnified  without  destinction  the 
inhabitants  of  its  territory. 

The  Germans,  guided  by  political  insight,  indem- 
nified very  largely  in  Alsace  without  distinction  of 
nationality,  but  they  allowed  nothing  to  the  Swiss. 
Before  acting  they  had  asked  of  the  Swiss  govern- 
ment an  undertaking  of  reciprocity.  Switzerland  had 
refused  to  enter  into  it,  and  the  natives  of  Switzer- 
land who  lived  in  the  territory  of  Alsace  received 
nothing. 

The  Enforcement  of  the  Laws  of  War 

The  question  of  the  enforcement  of  the  laws  of 
war  is  not  susceptible  of  an  absolute  solution.  It 
presents  itself  naturally  as  the  last  of  those  having 
relation  to  the  laws  of  war.  At  The  Hague  it  was 
deliberately  left  aside. 

The  international  conventions  of  1899  and  of  1907 
established  numerous  rules  more  or  less  precise. 
What  prospect  is  there  of  these  rules  being  observed? 
What  shall  be  the  penalty  to  apply  if  they  are  not? 

There  is  not  here,  as  in  domestic  law,  a  superior 
authority  which  requires  the  observation  of  the  rules 
adopted.  The  rules  of  international  law  are  not 
sanctioned  by  force;  everything  depends  on  the  good 
will  and  good  faith  of  the  parties.  The  best  method 
of  bringing  other  nations  to  the  observance  of  the 
laws  of  war  is  to  set  an  example  by  observing  them 
oneself.     And  for  this  reason  they  should  be  made 


INTERNATIONAL    LAW  243 

known  to  all;  the  soldiers  of  all  nations  must  know 
that  which  they  required  to  do. 

The  difficulties  which  a  lack  of  the  observance 
of  the  laws  of  war  may  raise,  result  either  from 
questions  of  fact  or  from  questions  of  law. 

(1)  Questions  of  Fact.— When  a  violation  of 
the  laws  of  war  is  charged  against  an  adversary  a 
conservative  attitude  should  at  first  be  assumed;  the 
tendency  is  to  admit  but  scant  justice  in  an  enemy. 
It  is  often  very  difficult  to  know  if  a  reprehensible 
act  hasfreally  been  committed  or  not;  the  exaggeration 
of  witnesses  should  be  considered.  It  may  have  been 
due  to  an  involuntary  error  that  a  flag  of  truce  or  an 
hospital  were  fired  upon;  the  injured  belligerent  may 
not  see  what  necessity  existed  for  such  action,  but 
the  other  belligerent  may  have  an  excuse.  In  such 
cases  one  should  begin,  therefore,  by  obtaining  the 
proofs  and  should  make  complaint  only  when  they 
have  been  secured. 

(2)  Questions  of  Law.— Questions  of  law  may 
also  be  presented.  The  facts  are  certain  in  them- 
selves, but  the  belligerent  who  is  responsible  for 
them  may  answer:  ''What  I  did  I  had  a  right  to 
do,"  because  while  there  are  certain  rules  which  are 
positive  and  clearly  determined,  there  are  other  rules 
of  custom  in  regard  to  which  a  clear  understanding 
has  not  yet  been  reached. 

(3)  Individual  Acts.  —There  may  also  be 
individual  acts  contrary  to  the  laws  of  war;  if  the 
authors  are  known,  action  should  be  taken. 

Repression  is  quite  easy  when  it  concerns  in- 
dividual acts,  the  authors  of  which  are  known,  and 
where  the  acts  were  not  authorized  by  competent 
authority. 

Entirely  different  is  the  collective  act  committed 
with  the  consent  of  the  military  authorities.  One 
may  protest  and  ask,  of  the  belligerent  at  fault, 


244  TWELFTH    LECTURE 

reparation  of  the  act  committed.  But  if  one  cannot 
obtain  satisfaction,  what  is  to  be  done?  What  course 
of  action  remains? 

Reprisals.— We  only  find  reprisals.  Reprisals 
are  acts  contrary  to  law  which  are  committed  to  meet 
other  acts  contrary  to  law,  about  which  complaint  is 
made.  They  should  be  looked  upon  as  a  means  of 
obtaining  from  the  enemy  the  cessation  of  a  state  of 
things  which  one  considers  as  illicit  and  unjust.  It 
is  neither  vengeance  nor  punishment:  it  is  a  means 
of  coercion.    The  limit  is  difficult  to  determine. 

The  gravest  fault  in  regard  to  reprisals  is  that  of 
striking  the  innocent.  In  1812,  during  the  Anglo- 
American  war,  England— adopting  the  principle  that 
there  is  a  perpetual  allegiance  which  requires  that 
an  Englishman  shall  never  lose  his  nationality,  even 
if  he  be  naturalized  abroad— declared  that  it  con- 
sidered as  traitors,  and  would  cause  to  be  shot  to 
death  all  the  English,  naturalized  as  Americans,  that 
it  captured.  To  this  threat  of  the  English  the  United 
States  answered  that  for  every  prisoner  which  the 
English  should  cause  to  be  shot  under  these  con- 
ditions it  would  cause  to  be  shot  three  Englishmen. 
Here  is  a  striking  example  of  a  threat  of  reprisals, 
because  it  seems  that  as  the  matter  stood  no  one  was 
executed  on  either  side. 

The  question  of  reprisals  is  not  mentioned  in  the 
rules  in  regard  to  the  laws  and  customs  of  war 
adopted  in  1899  and  1907. 

It  would  be  well,  however,  if  the  right  of  re- 
prisals were  regulated.  If  it  can  be  suppressed  it 
should  be.  But  if  this  is  not  possible,  if  reprisals  are 
are  a  necessity,  it  is  better  to  define  them  by  limita- 
tion than  to  allow  them  a  free  career  in  obedience  to 
an  exaggerated  sentiment  of  humanity  and  of 
delicacy. 


APPENDIX 


Suggested  Forms 

FOR 

MILITARY  PASSES,  etc.,  AS 
WELL  AS  FOR  CERTAIN 
MILITARY  AGREEMENTS 
SUCH  AS  ARMISTICES,  etc. 

TOGETHER  WITH  ILLUSTRATIONS  OF 
THE  LATTER 


PREPARED  FOR  THE  USE  OF 
THE  ARMY  SERVICE  SCHOOLS  BY 

LIEUTENANT  COLONEL  J.  B.  PORTER, 

JUDGE-ADVOCATE  U.  S.  A., 
SENIOR  INSTRUCTOR  IN  LAW 


FORT  LEAVENWORTH,  KANSAS 
PRESS  OF  THE  ARMY  SERVICE  SCHOOLS 


1914 


THE  following  forms  and  illustrations  of  certain  military 
orders  and  agreements  have  been  compiled  for  use  in 
connection  with  the  lectures  on  International  Law 
prepared  for  The  Army  Service  Schools  by  Lieut.  Colonel 
J.  B.  Porter,  Judge -Advocate,  Senior  Instructor,  Department 
of  Law. 

While  in  regard  to  military  agreements  it  is  probable  that 
in  no  two  cases  will  the  circumstances  of  the  agreements  be 
the  same,  it  is  believed  that  it  will  be  to  the  advantage  of 
officers  to  become  familiar  with  certain  suggested  forms  and 
with  the  examples  given  of  agreements  which  have  actually 
been  accomplished. 

Attention  is  invited  to  the  fact  that  while  in  an  actual 
case  many  of  the  articles  set  forth  in  the  forms  may  have  to 
be  changed  or  eliminated,  the  necessity  for  a  most  precise, 
even  minute,  statement  of  all  the  items  to  be  covered  by  the 
agreement  remains.  Every  item  which  otherwise  might  lead 
to  a  misunderstanding  should  be  determined  in  advance  and 
clearly  covered  by  the  terms  of  the  agreement. 


— 5— 

PASS 

(Place  and  Date  of  Issue.) 

living  at 

(or  if  on  a  mission,  the  mission  to 
be  stated),  is  authorized  to  pass  out 
of    the    lines  for  the  purpose    of 


He  will  cross  the  lines  by  the  road  leading  from 
A  to  B  (or  at  a  point  named)  during  (the  forenoon, 
afternoon  or  day)  of  (give  date). 

He  is  authorized  to  take  with  him  (persons,  arti- 
cles or  vehicles). 

He  will  proceed  to  (name  destination)  by  the 
route  C.  D.  E. 


(Signature  of  Officer.) 


(Bank,  Etc.) 

Note.— This  pass  is  strictly  personal  and  will  be  void 
unless  used  on  the  date  mentioned. 


PHOTOGRAPH 


SAFE- CONDUCT 

(Place  and  Date  of  Issue.) 

residing  at 

(or  if  on  a  mission,  the  mission  to 
be  stated)  is  authorized  to  proceed 
to for  the  pur- 
pose  of  

He  will  follow  the  route  A.  B.  C. 
He  is  authorized  to  take  with  him  (persons,  arti- 
cles, vehicles). 


♦Today  it  is  deemed  advisable  that,  when  possible,  a  portrait  of  the 
bearer  should  be  attached  to  passes  and  safe-conducts. 


This  safe-conduct  is  good  until 

All  military  authorities  are  directed  to  protect 
the  bearer  of  this  safe-conduct  and  in  no  wise  to 
molest  him. 


(Signature  of  Officer.) 


Rank,  Etc. 

Note.— This  safe -conduct  is  strictly  personal  and  shall  be 
void  unless  used  within  the  time  fixed. 


SAFE-GUARD 

(Place  and  Date  of  Issue.) 

All  officers  and  enlisted  men  belonging  to  the 
(name  army,  or  subdivision  thereof)  are  directed  to 
respect  the  premises  of „  situated  at 


No  requisitions  thereon,  nor  damage  thereto, 
will  be  permitted,  and  protection  will  be  afforded  by 
all  officers  and  enlisted  men  against  any  person  who 
shall  attempt  to  act  in  violation  of  this  order. 


(Signature  of  Officer.) 


(Rank,  Etc.) 

Note.— 57th  Article  of  War:  Whosoever,  belonging  to 
the  armies  of  the  United  States  in  foreign  parts,  or  at  any 
place  within  the  United  States  or  their  Territories  during  re- 
bellion against  the  supreme  authority  of  the  United  States, 
forces  a  safe-guard,  shall  suffer  death. 

63d  Article  of  War:  All  retainers  to  the  camp,  and  all 
persons  serving  with  the  armies  of  the  United  States  in  the 
field,  though  not  enlisted  soldiers,  are  to  be  subject  to  orders 
according  to  the  rules  and  discipline  of  war. 


—7- 

FORM  FOR  A  SUSPENSION  OF  ARMS 

General  A.B.,  commanding  the  forces  of  the 
United  States  at ,  and  General  CD.,  com- 
manding the  forces  of at ,  agree 

as  follows: 

Art.  1.  A  suspension  of  arms  for  the  space  of 
three  hours,  beginning  at  ten  o'clock  a.m,  and  end- 
ing at  one  o'clock  p.m.  on  this day  of is 

agreed  to  for  the  purpose  of  burying  the  dead  and 
withdrawing  the  wounded. 

Art.  2.  The  beginning  of  the  suspension  of 
arms  shall  be  notified  by  two  white  flags  hoisted 

simultaneously,  the  one  at within  the  United 

States  lines,  the  other  at within  the 

lines.  The  white  flags  shall  continue  flying  during 
the  suspension  of  arms,  and  such  flags  shall  be  low- 
ered simultaneously  as  a  signal  of  the  conclusion  of 
the  suspension  of  arms. 

Art.  3.  All  firing  shall  cease  during  the  suspen- 
sion of  arms. 

Art.  4.  The  troops  of  the  United  States  shall 
not,  during  the  suspension  of  arms,  advance  beyond 

the  line,  which  they  now  occupy  and  the  

troops  shall  not  advance  beyond  the  line  which  they 
now  occupy.  The  space  between  the  two  lines  shall 
be  open  to  all  persons  engaged  in  burying  the  dead, 
or  in  attending  to  the  wounded,  or  in  carrying  away 
the  dead  or  the  wounded,  but  to  no  other  persons. 

A.B 

CD. 

Date 

Illustration  of  a  Suspension  of  Arms 

SIEGE   OP  BELFORT,    13TH  FEBRUARY,   1871 

It  has  been  agreed  by  the  undersigned :  Captain  Krafft 
of  the  Auxiliary  Engineers,  and  Captain  von  Schultzendorf, 


General  Staff  of  the  besieging  army,  both  furnished  with  full 
powers  by  Colonel  Denfert-Rochereau,  Commandant  of  Bel- 
fort,  and  by  Lieutenant-Qeneral  von  Treskow,  Commandant 
of  the  besieging  corps. 
As  follows: 

(1)  Lieutenant-Qeneral  von  Treskow  will  send  a  tele- 

gram to  Versailles  to  acquaint  the  Imperial 
Chancellor  Count  Bismarck,  that  Colonel 
Denfert-Rochereau  requires  direct  instruc- 
tions from  his  government  as  regards  the 
surrender  of  the  fortress. 

(2)  Colonel  Denfert-Rochereau  will  send  an  officer 

to  Bale  to  await  the  telegraphic  instructions 
from  the  French  Government. 

(3)  Until  the  return  of  this  officer  there  will  be  a 

suspension  of  arms  between  the  besieged  and 
besiegers,  beginning  the  13th  of  February  at 
11  p.m.  Nevertheless  the  suspension  of  arms 
may  be  denounced  at  any  moment  twelve 
hours  before  the  time  intended  for  the  re- 
sumption of  hostilities. 

(4)  During  the  suspension  of  arms  the  two  parties 

shall  remain  in  their  present  positions.  The 
limits  thus  traced  shall  not  be  crossed,  and, 
moreover,  there  shall  be  no  communication 
on  the  part  of  civilians  between  the  fortress 
and  the  outside. 

(5)  Colonel  Denfert-Rochereau   engages   to  inform 

Lieutenant-General  von    Treskow   with    the 
least  possible  delay  of  the  decision  he  makes 
after  receiving  the  instructions  of  the  French 
Government. 
The  present  convention  has  been  made   in   duplicate 
original,  one  text  in  German  and  the  other  in  French. 
[Signed]       Krafpt. 

Von  Schultzendorf. 
13th  February,  1871. 


FORMS  OF  ARMISTICES 
For  an  Army  in  the  Open  Field 

Colonel  A.B.,  authorized  by  General  CD.,  U.  S. 
Army,  commanding  the  forces  of  the  United  States 


in  ,  and  Major  X.  Y.,   authorized  by  General 

Z.  W.,  commanding  the ,  agree  to  the  follow- 
ing articles: 

Art.  I.  On  publication  of  this  armistice,  hos- 
tilities shall  cease  between  the  forces  of  the  United 

States  and  of at  all  points  along  the  frontier 

of between and 

Art.  II.     The  armistice  shall  continue  until  noon 

on  the day  of and  until  such  further 

time  as  is  herein  mentioned. 

Art.  III.     Either  side  may  at  any  time  on  or 

after  the  said  day  of  give  six  days' 

notice  of  its  intention  to  determine  the  armistice  and 
the  armistice  shall  be  determined  at  the  expiration 
of  such  six  days.  Notice  shall  be  given  by  writing, 
stating  the  intention  to  determine  the  armistice,  and 
sent  from  the  headquarters  of  one  army  to  the  head- 
quarters of  the  other  army.  In  reckoning  time  for 
the  purpose  of  the  said  six  days'  notice,  the  day  on 
which  the  notice  is  given  at  whatever  hour  the  same 
may  be  given,  shall  be  reckoned  as  an  entire  day, 
and  the  armistice  shall  expire  at  midnight  on  the 
fifth  day  succeeding  the  day  on  which  the  notice  is 
given. 

Art.  IV.  The  lines  of  demarcation  shown  on  the 
attached  map  shall  be  strictly  adhered  to  during  the 
armistice.  The  territory  lying  between  the  two 
lines  of  demarcation  shall  be  strictly  neutral,  and 
any  advance  into  it  by  any  members  of  either  army 
is  prohibited  except  for  the  purpose  of  communication 
between  the  two  armies.     Neither  army  shall  extend 

its  line  in  a    or   direction  beyond  the 

points  shown  as  the  extremities  of  their  respective 
lines. 

Art.  V.  Subject  to  the  restrictions  mentioned 
in  the  4th  Article,   as  respects  making  an  advance 


—lo- 
in to  the  neutral  territory,  either  army  may  take 
measures  to  strengthen  its  position,  and  may  receive 
reinforcements  and  stores  of  warlike  and  other  ma- 
terial, and  may  do  any  other  act  not  being  an  act  of 
direct  hostility. 

Art.  VI.  During  the  two  days  following  the 
day  on  which  this  armistice  is  ratified,  burial  parties 
from  both  armies  shall   be  permitted  to  visit  the 

battlefield  of  the instant,  for  the  purpose  of 

burying  the  dead. 

Art.  VII.  The  main  road  from  A  to  B  via  C 
will  be  used  for  communication  between  the  com- 
manders   of  the  two  armies. 

Art.  VIII.  During  the  continuance  of  the  armis- 
tice, the  peaceful  inhabitants  of  the  country  shall 
be  allowed  to  pursue  their  occupations,  and  to  buy 
from  or  sell  to  either  army  provisions  or  goods,  but 
any  measures  consistent  with  the  observance  of  the 
articles  of  the  armistice  in  relation  to  the  neutral 
territory  may  be  taken  by  either  army  to  prevent 
inhabitants,  after  entering  the  lines  or  obtaining  in- 
formation respecting  one  army  from  passing  or 
carrying  information  to  the  other  army. 

Art.  IX.    This  armistice  shall  come  into  force 

immediately  on  its  ratification  by  the 

of  the  two  armies,  and  officers  shall  be  despatched 
with  all  speed,  from  the  headquarters  of  each  army, 
to  give  notice  of  the  armistice  at  all  points  along  the 
line. 

A.B 

X.Y 


For  Forces  Engaged  in  Siege  Operations 

General  A.B.,  commanding  the  forces  of  the 
United  States  in ,  and  General  CD.,  com- 


—11— 

manding  the  garrison  of ,  agree  to  the  fol- 
lowing articles: 

Art.  1.     An  armistice  between  the  troops  of  the 

United  States    investing and  the  troops 

forming  the  garrison  of shall  begin  at  noon 

on and  shall  end  at  noon  on  the 

Art.  2.  White  flags  shall  be  hoisted  simulta- 
neously at  the  beginning  of  the  armistice,  the  one  at 

within  the  United  States  lines  and  the 

other  at  Fort The  flags  shall  be  kept  fly- 
ing during  the  continuance  of  the  armistice,  and 
shall  be  lowered  simultaneously  at  its  conclusion. 

Art.  3.  Provisions  to  the  extent  of ra- 
tions shall  be  supplied  daily  for  the  use  of  the  garrison 
by  the  besiegers  on  payment  of  such  sums  as  may  be 
agreed  upon  as  the  value  thereof  by  commissioners 
to  be  appointed  by  the  above  named  commanders 
respectively.  The  provisions  shall  be  delivered  to 
persons  authorized  to  demand  the  same  by  the  gen- 
eral commanding  the  garrison,  at  such  times,  and  in 
such  places  in  front  of  the  United  States  lines,  as 
may  be  agreed  upon  by  the  above  named  com- 
manders, and  shall  be  conveyed  to  the  garrison  by 
the  persons  authorized  as  above  stated. 

Art.  4.  Save  in  so  far  as  is  provided  by  Article 
3,  or  as  may  be  agreed  upon  by  the  above  named 
commanders,  it  is  agreed  that  the  garrison  shall 
not  attempt  to  obtain  succor,  and  that  no  com- 
munication whatever  shall,  during  the  armistice, 
take  place  between  the  garrison,  and  either  friend 
or  enemy,  and  a  space  of around  the  forti- 
fications shall  be  considered  neutral  ground,  and  no 
person  whatever,  whether  he  be  a  stranger  or  be- 
longing to  the  garrison,  or  to  the  besieging  army, 
shall  be  allowed  to  enter  on  such  space  without  the 
permission  of  the  above  named  commanders. 


—12- 

Art.  5.  And  General  CD.,  commanding  the 
garrison,  engages  on  behalf  of  the  garrison  not  to 
repair  the  fortifications,  or  to  undertake  any  new 
siege-works,  or  to  do  any  act  or  thing  whatsoever 
calculated  to  place  the  garrison  in  a  better  position 
in  regard  to  its  defense;  and  General  A.B.,  on  behalf 
of  the  troops  of  the  United  States,  engages  not  to 
undertake  any  siege-works,  or  to  make  any  hostile 
movement  against  the  garrison,  but  it  is  understood 
that  he  is  at  liberty  to  obtain  fresh  supplies  of  pro- 
visions or  reinforcements  of  troops. 

A.B 

Date CD 


ILLUSTRATIONS  OF  ARMISTICES 

Armistice  Agreed  Upon  by  Japan  and  Russia 

at  Portsmouth  (U.  S.  A.)  on  5th 

September,  1905 

The  undersigned  plenipotentiaries  of  Japan  and 
Russia,  duly  authorized  to  that  effect  by  their  re- 
spective governments,  have  agreed  on  the  following 
terms  of  the  armistice  which  will  remain  in  force 
until  the  execution  of  the  treaty  of  peace: 

(1)  A  certain  distance  (zone  of  demarcation)  shall  be 

fixed  to  separate  the  front  of  the  armies  of  the 
two  powers  in  Manchuria,  and  also  in  the  Tumen 
region. 

(2)  The  naval  force  of  one  of  the  belligerents  may  not 

bombard  the  territory  occupied  or  belonging  to 
the  other. 

(3)  The  taking  of  maritime  prizes  will  not  be  interrupted 

by  the  armistice. 

(4)  During  the  armistice,   no    reinforcements  may  be 

sent  to  the  theatre  of  war.  Those  who  are  on  the 
way  from  Japan  may  not  be  sent  north  of  Mukden 
and  those  on  the  way  from  Russia  may  not  be 
sent  south  of  Harbin. 


I 


—13— 

(5)  The  commanders  of  the  military  and  naval  forces 

will  arrange  the  details  of  the  armistice  in  accord- 
ance with  the  principles  above  enunciated. 

(6)  The  two  Governments  will  issue  the  order  to  put 

this  protocol  into  execution   directly  after    the 
signature  of  the  treaty  of  peace. 

[Signed]    Witte.        [Signed]    Komoura. 
Rosen.  Takahura. 

The  peace  was  signed  5th  September,  1905,  at 
3:50  p.m. 

(The  foregoing  armistice  was  agreed  upon  by  the  pleni- 
potentiaries when  it  became  apparent  that  the  terms  of  a  peace 
would  be  reached.  The  practical  armistice  under  which  the 
armies  acted  is  the  following  one:) 


Protocol  of  the  Conditions  of  the  Armistice 

Concluded  in  Manchuria  on  13th 

September,  1905 

Art.  1.  Fighting  is  suspended  throughout  the  extent  of 
Manchuria. 

Art.  2.  The  space  between  the  front  lines  of  the  Japa- 
nese and  Russian  armies  which  are  indicated  on  the  maps 
exchanged  with  the  present  protocol  constitutes  the  neutral 
zone. 

Art.  3.  Every  person  having  the  least  connection  with 
either  of  the  armies  is  forbidden  to  enter  the  neutral  zone  on 
any  pretext  whatsoever. 

Art.  4.  The  road  leading  from  Shuang-miao-tzu  to  Sha- 
ho-tzu  is  to  be  employed  for  communication  between  the  two 
armies. 

Art.  5.  The  present  protocol  will  come  into  force  on  the 
16th  (Russian  style  3d)  September,  1905,  at  mid-day,  and  will 
remain  in  force  until  the  execution  of  the  treaty  of  peace, 
signed  at  Portsmouth  by  the  plenipotentiaries  of  the  two 
Powers. 

The  present  protocol  is  signed  by  the  representatives  of 
the  commanders-in-chief  of  the  Japanese  and  Russian  armies 
in  Manchuria,  in  virtue  of  the  full  powers  which  have  been 
given  to  them  by  the  said  commanders-in-chief. 

Done  on  the  road  situated  close  to  Sha-ho-tzu  the  13th 
September,  1905,  in  two  texts,  Japanese  and  Russian,  each 
party  keeping  a  Japanese  and  a  Russian  text. 
[Signed]       Fukushima, 

Major -General,  etc. 
Oranouski, 

Major-General,  etc. 


—14— 

Japanese  Project  for  the  Armistice  in  the 
Tumen  Region 

Art.  1.  The  Japanese  and  Russian  armies  in  the  Tumen 
region  will  execute  the  armistice  according  to  the  stipulations 
of  the  present  convention. 

Art.  2.     The  Japanese  army  will  canton  south  of  the  line 

The  positions  of  the  Russian  army  will  be  limited 

to  north  of  the  line    The  region  between  these  two 

lines  will  form  the  neutral  zone. 

Art.  3.  No  troops,  patrols  or  men  sent  on  reconnaissance, 
nor  any  individual  belonging  or  attached  to  the  army  will  be 
permitted  to  enter  the  neutral  zone. 

Art.  4.  No  preparations  for  attack  or  defense  will  be 
made  near  the  line  limiting  the  neutral  zone.  The  necessary 
preparations  for  cantoning  the  troops  will  not  be  considered 
as  preparations  for  attack  or  defense. 

Art.  5.  No  requisitions  for  coolies,  horses  or  any  other 
objects  will  be  made  in  the  neutral  zone. 

Art.  6.  The  Japanese  and  Russian  armies  in  the  Tumen 
region  will  both  commence  to  evacuate  their  troops  beyond 
the  lines  indicated  in  Art.  2  on  the  third  day  and  must  have 
completed  the  evacuation  behind  the  lines  by  the  seventh  day 
from  the  signing  of  the  present  convention. 

Art.  7.  Once  the  convention  is  drawn  up,  the  com- 
mander of  the  Japanese  and  Russian  armies  will  order  the 
troops  and  officials  under  their  command  to  execute  the 
armistice  in  such  a  manner  that  the  order  may  reach  them  as 
soon  as  possible.  They  will  at  the  same  time  notify  the  com- 
manders of  the  land  and  sea  forces. 

Art.  8.  This  convention  will  come  in  force  immediately 
it  has  been  signed  by  the  plenipotentiaries  of  the  Japanese 
and  Russian  armies;  it  will  lapse  on  the  execution  of  the 
treaty  of  peace. 

Art.  9.  The  present  convention  will  be  drawn  up  in  two 
Japanese  and  two  Russian  texts,  each  army  keeping  a  text  in 
each  language. 

fThis  project  was  not  agreeable  to  the  Russians  and  an 
armistice  had  not  been  concluded  when  the  treaty  of  peace  was 
ratified. ) 


M 


—15— 

ILLUSTRATIONS  OF  ARTICLES  OF 
CAPITULATION 


Surrender  of  the  Army  of  Northern  Virginia 

The  following  agreement  of  capitulation,  in  the  form  of  a 
letter  and  acceptance,  is  very  simple  in  its  terms.  It  is  given  here 
as  an  indication  of  what  may  be  done;  although  it  would  seem 
to  be  extremely  doubtful  if  any  articles  of  capitulation  of  a 
foreign  enemy  could  be  reduced  to  such  simple  items. 

Appomattox  C.  H.,  Va., 

Apl  9th,  1865. 
Gen.  R.  E.  Lee, 

Comd'g  C.  S.  A. 
Gen.  :  In  accordance  with  the  substance  of  my  letter  to 
you  of  the  8thinst.,  I  propose  to  receive  the  surrender  of  the 
Army  of  N.  Va.  on  the  following  terms,  to  wit:  Rolls  of  all 
the  officers  and  men  to  be  made  in  duplicate.  One  copy  to  be 
given  to  an  officer  designated  by  me,  the  other  to  be  retained 
by  such  officer  or  officers  as  you  may  designate.  The  officers 
to  give  their  individual  paroles  not  to  take  up  arms  against 
the  Government  of  the  United  States  until  properly  ex- 
changed, and  each  company  or  regimental  commander  sign  a 
like  parole  for  the  men  of  their  commands.  The  arms,  artil- 
lery and  public  property  to  be  parked  and  stacked,  and  turned 
over  to  the  officer  appointed  by  me  to  receive  them.  This 
will  not  embrace  the  side-arms  of  the  officers,  nor  their 
private  horses  or  baggage.  This  done,  each  officer  and  man 
will  be  allowed  to  return  to  their  homes,  not  to  be  disturbed 
by  United  States  authority  so  long  as  they  observe  their 
paroles  and  the  laws  in  force  where  they  reside. 
Very  respectfully, 

U.  S.  Grant, 

Lt.  Gen. 


Headquarters  Army  op  Northern  Virginia, 

April  9,  1865. 

General:     1  received  your  letter  of  this  date  containing 

the  terms  of  the  surrender  of  the  Army  of  Northern  Virginia 

as  proposed  by  you.      As  they  are  substantially  the  same  as 

those  expressed  in  your  letter  of  the    8th    inst.,   they  are 


—16— 

accepted.     I  will  proceed  to  designate  the  proper  officers  to 
carry  the  stipulations  into  effect. 

R.  E.  Lee, 

General. 
Lieut. -General  U.  S.  Grant. 


Capitulation  of  Sedan,  1870 

The  following  treaty  has  been  concluded  between 
the  undersigned,  the  Chief  of  the  General  Staff  of 
H.  M.  the  King  of  Prussia,  Commander-in-Chief  of 
the  German  Army,  and  the  Commander-in-Chief  of 
the  French  Army,  both  acting  with  full  powers  from 
King  William  and  the  Emperor  Napoleon: 

Art.  1.  The  French  Army,  under  the  command  of  Gen- 
eral de  Wimpffen,  at  the  present  time  invested  by  superior 
forces  in  Sedan,  are  prisoners  of  war. 

Art.  2.  In  consequence  of  the  brave  defense  of  this 
army,  exceptions  are  made  in  favor  of  such  general  and  other 
officers,  including  the  higher  officials  with  officers'  rank,  as 
bind  themselves  by  their  written  word  of  honor  not  to  take 
up  arms  against  Germany,  nor  to  act  in  any  way  prejudicial 
to  her  interests  until  the  close  of  the  present  war.  *  The 
officers  and  officials,  who  accept  these  conditions,  will  retain 
their  arms  and  private  property. 

Art.  3.  All  other  arms,  inclusive  of  the  entire  war 
materiel,  such  as  colours,  eagles,  standards,  guns,  horses, 
treasure  chests,  military  carriages,  ammunition,  etc.,  will  be 
delivered  up  to  some  military  authority  in  Sedan  appointed 
for  this  purpose  by  the  French  Commander-in-Chief,  with  a 
view  to  their  being  handed  over  without  delay  to  the  German 
agents. 

Art.  4.  The  fortress  of  fSedan  will  then  be  surrendered 
in  its  present  state  to  H.  M.  the  King  of  Prussia,  by  the  even- 
ing of  2d  September  at  the  latest. 

Art.  5.  Those  officers  who  do  not  accept  the  obligation 
mentioned  in  Art.  2,  and  the  men  disarmed,  are  to  be  marched 
off  by  regiments  in  parade  order.  This  measure  is  to  take 
effect  from  the  2d  September,  and  be  completed  by  the  3d. 
The  detachments  are  to  be  brought  to  the  ground  encircled  by 
the  Meuse  near  Iges,  with  a  view  to  their  being  handed  over 

*The  vague  terms  here  used  in  regard  to  the  scope  of  action  allowed 
to  paroled  officers  have  been  much  criticised. 


-17— 

to  the  German  agents  by  their  officers,  who  will  then  resign 
the  command  to  the  non-commissioned  officers. 

Art.  6.     The  army  surgeons  will  remain  behind  without 
exception  for  the  purpose  of  tending  the  wounded. 

[Signed]        V.  Molke. 

[Signed]       De  Wimpppen. 
Frenois,  2d  September,  1870. 


Capitulation  of  Strassburg,  1870 

Lieut. -General  v.  Werder,  of  the  Prussian 
Army,  commander  of  the  Siege  Corps  before  Strass- 
burg, having  been  requested  by  the  French  Lieuten- 
ant-General  Uhrich,  governor  of  Strassburg,  to  cease 
hostilities  against  the  fortress,  has  agreed  with  that 
officer,  in  consideration  of  the  honorable  and  gallant 
defense  of  the  place,  to  conclude  the  following  capit- 
ulation: 

Article  1.  At  8  a.m.  on  the  28th  September  1870, 
Lieutenant -General  Uhrich  will  evacuate  the  citadel,  the  Aus- 
terlitz,  Fisher's  and  National  gates.  At  the  same  time  the 
German  troops  will  occupy  these  points. 

Article  2.  At  11  o'clock  on  the  same  day  the  French 
garrison,  including  the  Mobile  and  National  Guard,  f  will  quit 
the  fortress  by  the  National  Gate,  will  form  up  between  Lunette 
No.  44  and  Redoubt  No.  37,  and  there  lay  down  its  arms. 

Article  3.  The  line  troops  and  Garde  Mobile  become 
prisoners  of  war  and  will  at  once  move  off  with  their  baggage. 
The  National  Guards  and  franctireurs  are  relieved  from  mak- 
ing any  declaration,  and  by  1  a.m.  will  lay  down  their  arms  at 
the  Mairie.  The  list  of  the  officers  of  these  troops  will  be 
handed  over  at  that  hour  to  General  v.  Werder. 

Article  4.  The  officers,  and  officials  with  officers'  rank, 
of  all  the  troops  of  the  French  Garrison  of  Strassburg  may 
proceed  to  a  place  of  abode  of  their  own  selection,  provided 
that  they  make  a  declaration  on  their  word  of  honor*. 

Those  officers  who  do  not  give  this  declaration  will  be  sent 

fThe  National  Guard  and  the  Mobile  Guard  mentioned  in  these  ar- 
ticles  of  capitulation  are  forces  akin  to  our  constitutional  milita  when  called 
into  the  service  of  the  United  States;  the  older  men  forming  a  sedentary 
body  known  as  the  "Garde  National"  and  the  younger  men  forming  mobile 
units  called  the  "Garde  Mobile".  Both  these  organizations  disappeared 
under  the  reorganization  of  the  French  Army. 

*This  declaration,  which  was  probably  the  usual  parole  used  in  the 
case  of  military  prisoners,  would  appear  to  have  been  formulated  in  a  sepa- 
rate document  annexed  to  the  Articles  of  Capitulation. 


—18— 

as  prisoners  of  war  with  the  garrison  to  Germany.  All  the 
French  military  surgeons  will  remain  in  their  present  functions 
until  further  orders. 

Article  6.  Lieutenant-General  Uhrich  binds  himself, 
directly  the  arms  are  laid  down,  to  hand  over  all  military 
stores,  government  treasure,  &c,  in  an  orderly  manner  through 
the  corresponding  officials  of  the  German  service. 

The  officers  and  officials  entrusted  with  this  duty  on  both 
sides  will  assemble  at  noon  on  the  28th  in  the  Place  de  Broglie 
at  Strassburg. 

This  capitulation  was  drawn  up  and  signed  by  the  follow- 
ing plenipotentiaries: — The  Chief  of  the  General  Staff  of  the 
Siege  Corps,  Lieutenant-Colonel  v.  Leszczynski,  Captain  and 
Adjutant  Count  Henckel  v.  Donnersmarck  on  the  German 
side,  and  on  the  French  side  by  Colonel  Ducasse,  commandant 
of  Strassburg,  and  Lieutenant- Colonel  Mangin,  assistant-di- 
rector of  artillery. 

Read,  approved,  and  subscribed. 
(Here  follow  the  signatures) 

Confirmed. 

[Signed]       V.  Werder, 
Mundolsheim,  Lieutenant-General. 

28th  September  1870. 


Capitulation  at  Metz,  1870 


Protocol 


Between  the  undersigned,  the  Chief  of  the  Staff 
of  the  Prussian  Army  before  Metz,  and  the  Chief  of 
the  Staff  of  the  French  Army  in  Metz,  both  being 
delegated  with  full  powers  by  H.  R.  H.  General  of 
Cavalry  Prince  Frederick  Charles  of  Prussia,  and  by 
H.  E.  the  Commander  in  Chief,  Marshal  Bazaine,  the 
following  agreement  has  been  ratified: 

1st   Article 

The  French  Army  under  the  orders  of  Marshal  Bazaine  are 
prisoners  of  war. 

Hd  Article 

The  fortress  and  the  town  of  Metz,  with  all  the  forts,  the 
materiel  of  war,  stores  of  all  kinds,  and  all  public  property  will 
be  handed  over  to  the  Prussian  Army  in  the  same  condition  in 


—19— 

which  it  stands  at  the  time  of  signing  this  agreement.  Forts 
St.  Quentin,  Plappeville,  St.  Julien,  Q.ueuleu  and  St.  Privat, 
as  well  as  the  Mazelle  Gate  (Strassburg  road)  will  be  handed 
over  on  Saturday  the  29th  of  October  at  noon  to  the  Prussian 
troops.  At  10:00  a.m.  that  day  artillery  and  engineer  officers, 
with  some  non-commissioned  officers,  will  be  admitted  into  the 
above  mentioned  forts,  for  the  purpose  of  taking  over  the 
powder  magazines  and  rendering  harmless  any  mines  that 
might  exist. 

Hid  Article 

The  arms  as  well  as  the  whole  of  the  war  materiel  of  the 
army,  consisting  of  the  colors,  eagles,  cannon,  mitrailleuses, 
horses,  money  chests,  military  wagons,  ammunition,  and  so 
forth,  will  be  handed  over,  in  Metz  and  in  the  forts,  to  a  com- 
mission appointed  by  Marshal  Bazaine,  for  the  purpose  of  be- 
ing transferred  immediately  after  to  Prussian  commissaries. 

The  troops,  disarmed,  will  be  drawn  up  by  regiment  or  by 
corps,  and  will  be  brought  in  parade  order  to  the  places  which 
shall  be  indicated  for  each  corps. 

The  officers  will  then  return  to  the  lines  of  the  intrenched 
camp  or  to  Metz,  but  on  the  condition  that  they  are  hereby 
bound  on  their  word  of  honor  not  to  quit  Metz  without  orders 
from  the  Prussian  Commandant. 

The  troops  will  then  be  conducted  by  their  non-commis- 
sioned officers  to  their  places  of  bivouac. 

The  soldiers  will  retain  their  knapsacks,  effects,  and  camp 
equipment  (tents,  blankets,  cooking  utensils,  etc.). 

IVth  Article 

All  generals  and  other  officers,  in  addition  to  those  military 
officials  holding  the  relative  rank  of  officers,  who  give  their 
word  of  honor  in  writing  not  to  serve  against  Germany  during 
the  present  war,  nor  to  act  against  its  interests  in  any  other 
manner,*  will  cease  to  be  prisoners  of  war. 

The  officers  and  officials  who  accept  this  condition  will  re- 
tain their  arms  and  personal  property. 

In  consideration  of  the  valor  displayed  by  both  the  Army 
and  the  garrison  during  the  campaign,  those  officers  who  elect 
to  be  prisoners  of  war  will  be  permitted  in  addition  to  take 
with  them  their  swords  and  their  personal  property. 

Vth  Article 
All  Army  Doctors  will  remain  at  Metz  in  order  to  look 
after  the  wounded;  they  will  receive  the  privileges  in  con- 
formity with  the  Geneva  Convention.    The  same  is  to  apply 
to  the  personnel  of  the  hospitals. 

♦The  vague  terms  here  used  in  regard  to  the  scope  of  action  allowed  to 
paroled  officers  have  been  much  criticised. 


—20— 
Vlth   Article 

Explanations  with  regard  to  certain  points,  more  particu- 
larly with  regard  to  local  interests,  are  treated  in  an  Appendix 
hereto  annexed,  which  has  the  same  authority  as  the  present 
protocol. 

Vllth  Article 

Any  article,  which  might  admit  of  doubt,  will  always  be  in- 
terpreted in  favor  of  the  French  Army. 

Done  at  Chateau  Prescaty,  27th  October,  1870. 

(Signed)    V.  Stiehle. 
(Signed)    J  arras. 


Appendix 

1st  Article 


The  civil  officials,  superior  and  inferior,  belonging  to  the 
array  or  the  fortress,  now  present  at  Metz,  may  proceed 
whither  they  desire  and  take  all  their  property  with  them. 

lid  Article 

No  one,  whether  he  belong  to  the  National  Guard,  or  be  he 
an  inhabitant  of  the  town,  or  a  fugitive  therein,  shall  be  liable 
to  punishment,  either  on  account  of  political  or  religious 
views,  or  for  any  share  that  he  may  have  taken  in  the  defense, 
or  on  account  of  any  assistance  he  may  have  rendered  to  the 
army  or  to  the  garrison. 

Hid  Article 

Sick  and  wounded  left  in  the  town  shall  receive  every  care 
which  their  condition  may  require. 

IVth  Article 

Families  which  may  be  left  in  Metz  by  the  garrison  shall 
not  be  molested,  and  like  the  civil  officials,  may  likewise  de- 
part without  let  or  hindrance  with  all  that  belongs  to  them. 

The  furniture  and  effects  which  the  members  of  the  garri- 
son are  compelled  to  leave  in  Metz,  shall  neither  be  plundered 
nor  confiscated,  but  shall  remain  their  property.  It  will  bo 
optional  with  them  to  cause  this  property  to  be  fetched  away 
within  a  period  of  six  months  from  the  conclusion  of  peace  or 
their  release  from  captivity. 

Vth  Article 

The  Commander-in-Chief  of  the  Prussian  Army  under- 
takes the  duty  of  preventing  any  damage  being  done  either  to 
the  persons  or  goods  of  the  inhabitants. 


—21— 

In  the  same  manner  the  property  of  the  Department,  of 
the  parishes,  of  trade  or  other  unions,  of  civil  or  spiritual  or 
other  corporations,  of  work  houses  or  charitable  institutions, 
shall  remain  uninjured. 

The  privileges  which  on  the  day  of  the  capitulation  the 
corporations  and  societies,  as  also  private  persons  may  mutu- 
ally exercise,  according  to  French  Law,  shall  in  no  wise  be  in- 
terfered with. 

Vlth  Article 

To  this  end  it  is  especially  arranged  that  all  local  adminis- 
trations, as  also  the  above  mentioned  societies  or  corporations, 
shall  retain  those  archives,  books,  papers,  collections  and  doc- 
uments of  every  kind  which  may  be  in  their  possession. 

The  notaries,  advocates,  and  other  judicial  officials  shall 
retain  their  archives  and  deeds  or  deposits. 

Vllth  Article 

The  archives,  books,  and  papers  belonging  to  the  state 
shall  remain  generally  in  the  fortress,  and  at  the  conclusion  of 
peace  all  such  documents  as  refer  to  those  districts  reverting 
to  France  shall  be  returned  to  France. 

The  outstanding  amounts,  which  are  necessary  for  the 
adjustment  of  the  accounts,  or  which  might  give  rise  to  law- 
suits, to  reclamations  on  the  part  of  third  persons,  shall  remain 
in  the  hands  of  those  officials  or  agents  to  whom  they  are  at 
present  intrusted;  the  provisions  of  the  preceding  paragraph 
in  this  respect  undergo  amendment. 

Vlllth  Article 

With  regard  to  the  movement  of  the  French  troops  from 
their  bivouacs  as  prescribed  by  Art.  Ill  of  the  Protocol,  the 
following  course  will  be  adopted:  The  officers  will  lead  their 
troops  to  the  points  and  in  the  directions  as  below  prescribed. 
On  arrival  at  their  destinations,  they  will  deliver  to  the  Prus- 
sian commander  of  troops  a  statement  of  the  effective  of  the 
troops  under  their  orders,  after  which  they  will  hand  over  the 
command  to  the  non-commissioned  officers  and  withdraw. 

The  6th  Corps  and  Forton's  Cavalry  Division  will  follow 
the  road  from  Thionville  to  Ladonchamps. 

The  4th  Corps,  moving  between  Forts  St.  Quentin  and 
Plappeville  along  the  Amanvillers  road,  will  be  led  as  far  as  the 
Prussian  lines. 

The  Guard,  the  General  Artillery  Reserve,  the  Engineers 
and  equipage  train  of  the  headquarters,  passing  along  the 
railway  embankment,  will  take  the  road  to  Nancy  as  far  as 
Tournebride. 


The  2d  Corps,  with  Laveaucoupet's  Division  and  Lapasset's 
Brigade,  which  belong  to  it,  will  move  along  the  road  to 
Magny-sur- Settle,  and  will  halt  at  St.  Thiebault  farm. 

The  Gardes  Mobiles  of  Metz  and  other  troops  of  the  gar- 
rison, except  Laveaucoupet's  Division,  will  move  along  the 
Strassburg  road  as  far  as  Grigy. 

Lastly,  the  3d  Corps  will  move  along  the  Saarbrucken  road 
as  far  as  Bellecroix  farm. 

Done  at  Chateau  Frescaty,  27th  October,  1870. 

(Signed)    V.  Stiehle. 
(Signed)    Jarras. 


Capitulation  of  Santiago,  1898 

Terms  of  the  millitary  convention  for  the  capitu- 
lation of  the  Spanish  forces  occupying  the  territory 
which  constitutes  the  division  of  Santiago  de  Cuba, 
and  described  as  follows:  All  that  portion  of  the 
island  of  Cuba  east  of  a  line  passing  through  Aser- 
radero,  Dos  Palmas,  Cauto  Abajo,  Escondida, 
Tanamo,  and  Aguidora,  said  troops  being  in  command 
of  General  Jose  Toral,  agreed  upon  by  the  under- 
signed commissioners:  Brigadier  General  Don  Fed- 
erico  Escario;  Lieutenant-Colonel  of  Staff  Don  Ven- 
tura Fontan;  and,  as  interpreter,  Mr.  Robert  Mason, 
of  the  city  of  Santiago  de  Cuba,  appointed  by  Gen- 
eral Toral,  commanding  the  Spanish  forces,  on  be- 
half of  the  Kingdom  of  Spain,  and  Major  General 
Joseph  Wheeler,  U.S.V.;  Major  General  H.  W.  Law- 
ton,  U.S. V.;  and  First  Lieutenant  J.  D.  Miley,  2d 
Artillery,  A.D.C.,  appointed  by  General  Shafter, 
commanding  the  American  forces,  on  behalf  of  the 
United  States: 

1.  That  all  hostilities  between  American  and  Spanish 
forces  in  this  district  absolutely  and  unequivocally  cease. 

2.  That  this  capitulation  includes  all  the  forces  and  war 
material  in  said  territory. 

3.  That  the  United  States  agrees  with  as  little  delay  as 
possible  to  transport  all  the  Spanish  troops  in  said  district  to 
the  Kingdom  of  Spain,  the  troops  being  embarked,  as  far  as 
possible,  at  the  port  nearest  the  garrisons  they  now  occupy. 

4.  That  the  officers  of  the  Spanish  army  be  permitted  to 


retain  their  side  arms  and  both  officers  and  private  soldiers 
their  personal  property. 

5.  That  the  Spanish  authorities  agree  to  remove,  or 
assist  the  American  Navy  in  removing,  all  mines  or  other  ob- 
structions to  navigation  now  in  the  harbor  of  Santiago  and  its 
mouth. 

6.  That  the  commander  of  the  Spanish  forces  deliver, 
without  delay,  a  complete  inventory  of  all  arms  and  munitions 
of  war  of  the  Spanish  forces  in  above  described  district  to  the 
commander  of  the  American  forces;  also  a  roster  of  said 
forces  now  in  said  district. 

7.  That  the  commander  of  the  Spanish  forces,  in  leaving 
said  district,  is  authorized  to  carry  with  him  all  military 
archives  and  records  pertaining  to  the  Spanish  army  now  in 
said  district. 

8.  That  all  that  portion  of  the  Spanish  forces  known  as 
volunteers,  mobilizados,  and  guerrillas  who  wish  to  remain  in 
the  island  of  Cuba  are  permitted  to  do  so  upon  condition  of 
delivering  up  their  arms  and  taking  a  parole  not  to  bear  arms 
against  the  United  States  during  the  continuance  of  the  pres- 
ent war  between  Spain  and  the  United  States. 

9.  That  the  Spanish  forces  will  march  out  of  Santiago  de 
Cuba  with  honors  of  war,  depositing  their  arms  thereafter  at 
a  point  mutually  agreed  upon,  to  await  their  disposition  by 
the  United  States  Government,  it  being  understood  that  the 
United  States  commissioners  will  recommend  that  the  Span- 
ish soldier  return  to  Spain  with  the  arms  he  so  bravely  de- 
fended. 

10.  That  the  provisions  of  the  foregoing  instrument  be- 
come operative  immediately  upon  its  being  signed. 

Entered  into  this  16th  day  of  July,  1898,  by  the  under- 
signed commissioners,  acting  under  instructions  from  their 
respective  commanding  generals  and  with  the  approbation  of 
their  respective  Governments. 

Joseph  Wheeler, 
Major  General,  United  States  Volunteers. 

H.  W.  Lawton, 
Major  General,  United  States  Volunteers. 

J.  D.  Miley, 
First  Lieutenant,  2d  Artillery  y 

A.  D.  O.  to  General  Shafter. 
Federico  Escario. 
Ventura  Fontan. 
Robt.  Mason. 


—24— 

Capitulation  of  Manila 

Manila,  August  U,  1898. 
The  undersigned  having  been  appointed  a  com- 
mission to  determine  the  details  of  the  capitulation 
of  the  city  and  defenses  of  Manila  and  its  suburbs, 
and  the  Spanish  forces  stationed  therein,  in  accord- 
ance with  the  agreement  entered  into  the  previous 
day  by  Major  General  Wesley  Merritt,  U.  S.  Army, 
American  commander-in-chief  in  the  Philippines, 
and  His  Excellency  Don  Fermin  Jaudenes,  acting 
general-in-chief  of  the  Spanish  army  in  the  Philip- 
pines, have  agreed  upon  the  following: 

1.  The  Spanish  troops,  European  and  native,  capitulate 
with  the  city  and  its  defences,  with  all  the  honors  of  war,  de- 
positing their  arms  in  the  places  designated  by  the  authorities 
of  the  United  States,  and  remaining  in  the  quarters  designated 
and  under  the  orders  of  their  officers  and  subject  to  control  of 
the  aforesaid  United  States  authorities,  until  the  conclusion  of 
a  treaty  of  peace  between  the  two  belligerent  nations. 

All  persons  included  in  the  capitulation  remain  at  liberty, 
the  officers  remaining  in  their  respective  homes,  which  shall 
be  respected  as  long  as  they  observe  the  regulations  prescribed 
for  their  government  and  the  laws  in  force. 

2.  Officers  shall  retain  their  side  arms,  horses,  and  pri- 
vate property. 

3.  All  public  horses  and  public  property  of  all  kinds  shall 
be  turned  over  to  staff  officers  designated  by  the  United 
States. 

4.  Complete  returns  in  duplicate  of  men  by  organizations, 
and  full  lists  of  public  property  and  stores  shall  be  rendered  to 
the  United  States  within  ten  days  from  this  date. 

5.  All  questions  relating  to  the  repatriation  of  officers 
and  men  of  the  Spanish  forces  and  of  their  families  and  of  the 
expenses  which  said  repatriation  may  occasion,  shall  be  re- 
ferred to  the  Government  of  the  United  States  at  Washington. 

Spanish  families  may  leave  Manila  at  any  time  convenient 
to  them. 

The  return  of  the  arms  surrendered  by  the  Spanish  forces 
shall  take  place  when  they  evacuate  the  city  or  when  the 
American  army  evacuates. 


—25— 

6.  Officers  and  men  included  in  the  capitulation  shall  be 
supplied  by  the  United  States,  according  to  their  rank,  with 
rations  and  necessary  aid  as  though  they  were  prisoners  of 
war,  until  the  conclusion  of  a  treaty  of  peace  between  the 
United  States  and  Spain. 

All  the  funds  in  the  Spanish  treasury,  and  all  other  public 
funds,  shall  be  turned  over  to  the  authorities  of  the  United 
States. 

7.  This  city,  its  inhabitants,  its  churches  and  religious 
worship,  its  educational  establishments,  and  its  private  prop- 
erty of  all  descriptions  are  placed  under  the  special  safeguard 
of  the  faith  and  honor  of  the  American  army. 

F.  V.  Greene, 
Brigadier  General  of  Volunteers,  United  States  Army. 
P.  B.  Lamberton, 
Captain,  United  States  Navy. 
Chas.  A.  Whether, 
Lieutenant  Colonel  and  Inspector  General. 
E.  H.  Crowder, 
Lieutenant  Colonel  and  Judge  Advocate. 
Nicholas  de  la  Pen  a, 

Auditor  General,  Excmo. 
Carlos  Reges, 

Coronel  de  Ingenieros. 

Jose  Ma  .  de  Olaguro  Felin, 

Coronel  de  Estado  Major. 


Capitulation  of  Port  Arthur,  1904 

Art.  I.  The  military  and  naval  forces  of  Russia  in  the 
fortress  and  harbor  of  Port  Arthur,  as  well  as  the  volunteers 
and  the  officials,  shall  all  become  prisoners. 

Art.  II.  The  forts  and  fortifications  of  Port  Arthur,  the 
warships  and  other  craft,  including  torpedo  craft,  the  arms, 
the  ammunition,  the  horses,  all  and  every  material  for  warlike 
use,  shall  be  handed  over  as  they  are  to  the  Japanese  army. 

Art.  III.  When  the  above  two  articles  are  agreed  to,  the 
following  steps  shall  be  taken  by  way  of  guarantee,  namely, 
by  noon  on  the  3d  instant  all  garrisons  shall  be  withdrawn 
from  fortifications  and  forts  at  I-zu-shan,  Hsiao-an-tzu-shan, 
Ta-an-tzu-shan,  and  all  the  highlands  on  the  southeast  of 


-26— 

these,  and  the  said  fortifications  and  forts  shall  be  handed 
over  to  the  Japanese  Army. 

Art.  IV.  Should  it  be  recognized  that  the  Russian  mili- 
tary or  naval  forces  destroy  or  take  any  other  steps  to  alter 
the  condition  of  the  things  enumerated  in  Art.  II  and  actually 
existing  at  the  time  of  the  signature  of  this  Agreement,  these 
negotiations  shall  be  broken  off  and  the  Japanese  army  will 
break  off  negotiation  and  resume  freedom  of  action. 

Art.  V.  The  officers  of  the  Russian  military  and  naval 
forces  of  Port  Arthur  shall  compile  and  hand  to  the  Japanese 
Army  maps  showing  the  arrangement  of  the  defenses,  the 
positions  of  mines  and  torpedoes  or  other  dangerous  objects, 
as  well  as  lists  of  the  organization  of  the  naval  and  military 
forces  in  Port  Arthur,  nominal  rolls  of  the  military  and  naval 
officers,  their  ranks  or  grades,  similar  rolls  relating  to  the 
warships,  lists  of  the  ships  of  all  descriptions  and  their  crews, 
and  tables  of  the  non-combatants,  male  and  female,  their  na- 
tionalities and  their  occupations. 

Art.  VI.  The  arms  (including  those  in  the  hands  of  the 
forces),  the  ammunition,  and  all  material  for  war  uses  (except 
private  property)  shall  be  all  left  in  their  present  positions. 
Rules  relating  to  the  handing  over  and  receipt  of  these  objects 
shall  be  arranged  by  commissioners  from  the  Russian  and 
Japanese  armies. 

Art.  VII.  The  Japanese  army,  as  an  honor  to  the  brave 
defense  made  by  the  Russian  army,  will  allow  the  officers  of 
the  Russian  military  and  naval  forces  and  the  officials  attached 
to  the  said  forces  to  retain  their  swords,  together  with  all 
privately  owned  articles  directly  necessary  for  daily  exist- 
ence. Further,  with  regard  to  the  said  officers,  officials, 
and  volunteers,  such  of  them  as  solemnly  pledge  them- 
selves in  writing  not  to  bear  arms  again  until  the  close  of 
the  present  war,  and  not  to  perform  any  act  of  whatsoever 
kind,  detrimental  to  the  interests  of  Japan,  shall  be  permitted 
to  return  to  their  country,  and  one  soldier  shall  be  allowed  to 
accompany  each  officer  of  the  army  or  navy.  These  soldiers 
shall  be  required  to  give  a  similar  pledge. 

Art.  VIII.  The  disarmed  non-commissioned  officers  and 
men  of  the  army  and  navy,  as  well  as  of  the  volunteers,  wear- 
ing their  uniforms,  carrying  their  tents  and  all  privately 
owned  necessaries  of  daily  life,  shall  under  the  command  of 
their  respective  officers,  assemble  at  places  indicated  by  the 


—27— 

Japanese  army.  The  details  of  this  arrangement  will  be 
shown  by  the  commissioners  of  the  Japanese  army. 

Art.  IX.  The  officials  of  the  sanitary  and  paymaster's  de- 
partments of  the  Russian  military  and  naval  forces  in  Port 
Arthur  shall  remain  and  continue  to  discharge  their  duties 
under  the  control  of  the  Japanese  sanitary  and  paymaster's 
departments  so  long  as  the  Japanese  army  deems  it  necessary 
for  ministering  and  affording  sustenance  to  the  sick,  the 
wounded,  and  the  prisoners. 

Art.  X.  Detailed  regulations  with  reference  to  the  man- 
agement of  the  non -combatants,  the  administration  of  the 
town,  the  performance  of  financial  duties,  the  transfer  of  doc- 
uments relating  to  these  matters,  and  with  reference  to  the 
carrying  out  of  the  Agreement  in  other  respects,  shall  be  en- 
tered in  an  Appendix  to  this  Agreement.  Such  Appendix  (a) 
shall  have  the  force  of  the  Agreement  itself. 

Art.  XI.  Each  of  the  contracting  parties  shall  receive 
one  copy  of  this  Agreement,  and  it  shall  become  operative 
from  the  time  of  its  signature. 

(a)  In  the  appendix  to  the  terms  of  surrender  of  Port  Arthur,  four  com- 
mittees were  appointed,  each  to  secure  the  execution  of  a  particular  article 
of  the  Convention.  The  first  Committee  dealt  with  arms,  ammunition,  and 
material  of  war,  and  was  subdivided  into  four  sub-committees  which  settled 
respectively:  (i)  forts,  batteries,  arms,  ammunition,  etc,  of  the  land 
forces;  (ii)  war  vessels  and  shipping;  (iii)  supplies;  (iv)  removal  of  danger- 
ous objects.  The  second  committee  dealt  with  personnel;  the  third  with 
the  sick  and  wounded;  and  the  fourth  with  the  civil  administration, 
finances,  and  the  civil  inhabitants.— (Ariga,  pp.  310-12.) 


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